United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on petitioner's motion to
vacate, set aside, or correct sentence, made pursuant to 28
U.S.C. § 2255 (DE 75). The court held this matter in
abeyance pending decision in Beckles v. United
States, 137 S.Ct. 886 (2017), and then directed
supplemental briefing, which has been received. In this
posture, the issues raised are ripe for ruling. For the
reasons that follow, this court dismisses petitioner's
3, 2008, petitioner pleaded guilty without a plea agreement
to possession with the intent to distribute more than five
grams of cocaine base (crack), in violation of 21 U.S.C.
§ 841(a)(1). On September 15, 2008, the court sentenced
petitioner to a total of 288 months imprisonment. Petitioner
appealed and the Court of Appeals for the Fourth Circuit
affirmed the judgement of the court. U.S. v. Bealon,
338 Fed.Appx. 345 (4th Cir. 2009). On August 10, 2010,
petitioner filed a § 2255 motion, alleging unreasonable
sentence and court reliance upon improper government
argument. On April 11, 2011, the court dismissed
petitioner's motion. On August 15, 2012, petitioner filed
another § 2255 motion, claiming he was wrongfully
sentenced as a career offender in light of United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011). On January 28,
2014, the court dismissed petitioner's motion as
successive and untimely.
27, 2016, petitioner filed the instant motion to vacate
pursuant to 28 U.S.C. § 2255, arguing that his guideline
range was incorrectly calculated because his prior
convictions were improperly consolidated and in light of
Johnson v. United States, 135 S.Ct. 2551 (2015).
Petitioner filed a supplemental memorandum in support of his
motion to vacate, additionally arguing that petitioner's
prior controlled substance convictions are not
“controlled substance offenses” for purposes of
the sentencing guidelines. (DE 88 at 2-7). The government
contends in its response filed in opposition to
petitioner's motion to vacate that the instant motion is
barred by Beckles and any remaining claims are not
cognizable on collateral review. (DE 89).
relief that is requested in petitioner's pending motion
is that which would result from a successful motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. Thus, the motion is correctly characterized as a
§ 2255 petition. United States v. Winestock,
340 F.3d 200, 207 (4th Cir. 2003) (“a motion directly
attacking the prisoner's conviction or sentence will
usually amount to a successive application” as will
“new legal arguments or proffers of additional
second or successive petition must be certified by the court
of appeals to contain either “newly discovered evidence
. . . or a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. §
2255(h)(1)-(2). Absent pre-filing authorization, a district
court lacks jurisdiction to consider a second or successive
petition. Winestock, 340 F.3d at 205.
that the instant motion attacks the same conviction and
sentence as was earlier challenged by petitioner's prior
§ 2255 motions, it is properly construed as a successive
§ 2255 petition, and this court is without jurisdiction
to consider it in the absence of pre-filing authorization.
Petitioner is not required to receive notice of the
court's characterization of the motion as it has been
found to be second or successive. See United States v.
Brown, 132 F. App'x 430, 431 (4th Cir. 2005).
Accordingly, petitioner's motion to vacate will be
dismissed as successive.
addition, the court notes that petitioner's arguments
fail on the merits. The Supreme Court has not recognized a
new rule of substantive law retroactively applicable to cases
on collateral review on the basis asserted here. See
Beckles, 137 S.Ct. at 890 (holding that the
“advisory Guidelines are not subject to vagueness
challenges under the Due Process clause”).
Additionally, petitioner was correctly sentenced as a
“career offender” under the Sentencing
Guidelines. Petitioner is a “career offender” if
1) he was at least 18 years old at the time he committed the
instant offense of conviction; 2) the instant offense of
conviction is a felony that is either a crime of violence or
a controlled substance offense; and 3) he has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense. U.S.S.G. 4B1.1(a). Petitioner
maintains, among others, two separate felony convictions not
consolidated with each other for felony possession with
intent to sell or deliver cocaine. (Presentence Report (DE
14) ¶¶ 25, 26). Each of these convictions are
felony controlled substance offenses punishable by more than
one year. Therefore, petitioner remains a career offender.
See United States v. Mitchell, 679 Fed.Appx. 259
(4th Cir. 2017) (holding North Carolina conviction of felony
possession with intent to sell and deliver cocaine to qualify
as a predicate under the guidelines); see also Miller v.
United States, No. 7:13-CR-75-FL-1, 2017 WL 2788330, at
*3 (E.D. N.C. June 27, 2017) (citing United States v.
Dozier, 848 F.3d 180, 187 (4th Cir. 2017) (holding North
Carolina's “controlled substance offense” to
be categorical match to generic “controlled substance
offense, ” as contemplated by the guidelines).
Certificate of Appealability
certificate of appealability may issue only upon a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Because
petitioner's post-conviction motion must be ...