United States District Court, W.D. North Carolina, Charlotte Division
DANIEL R. SAWYER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
J. Conrad, Jr. United States District Judge.
MATTER is before the Court on Petitioner's
Motion to Vacate pursuant to 28 U.S.C. § 2255, (Doc. No.
1), his Motion to Stay the § 2255 proceedings, (Doc. No.
3), and an Amended Motion to Withdraw as Attorney filed by
the Federal Public Defender of Western North Carolina, (Doc.
pled guilty to four counts of bank robbery in the underlying
criminal case. See (Case No. 3:05-cr-229, Doc. No.
33). The presentence investigation report (“PSR”)
scored Petitioner with an offense level as 32 as a career
offender based on his prior North Carolina convictions for
breaking and entering in 1996 and 1997. (Id., Doc.
No. 38 at ¶ 51). After deducting three levels for
acceptance of responsibility, the total offense level was 29.
(Id., Doc. No. 38 at ¶¶ 52, 53).
Petitioner had a total of 20 criminal history points with a
criminal history category of VI, and the criminal history
category for career offenders is also VI. (Id., Doc.
No. 38 at ¶¶ 76-78). The resulting guideline range
was 151 to 188 months' imprisonment. (Id., Doc.
No. 38 at ¶ 108).
8, 2007, the Court sentenced Petitioner within the advisory
guideline range to 160 months' imprisonment for each
count, concurrent, followed by a total of three years of
supervised release. (Id., Doc. No. 33). Petitioner
did not appeal.
March 21, 2012, Petitioner filed a § 2255 motion to
vacate that was opened in a separate civil case,
3:12-cv-193-RJC. He argued that his prior North Carolina
breaking and entering convictions no longer support career
offender sentencing pursuant to United States v.
Simmons, 649 F.3d 237 (2011). The Court dismissed the
§ 2255 motion to vacate as time-barred. Sawyer v.
United States, 2013 WL 822132 (W.D. N.C. March 6, 2013).
The Fourth Circuit Court of Appeals dismissed his appeal on
January 21, 2014. United States v. Sawyer, 552
Fed.Appx. 230 (4th Cir. 2014).
November 2, 2015, Petitioner filed a second § 2255
motion to vacate, case number 3:15-cv-546-RJC. He argued that
he was erroneously sentenced as a career offender pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015), in
which the Supreme Court held that the Armed Career Criminal
Act's residual clause is unconstitutionally vague. The
Court dismissed the motion to vacate as an unauthorized
second or successive petition on November 23, 2015.
See (Case No. 3:05-cr-229, Doc. No. 45).
then requested, and was granted, leave by the Fourth Circuit
to file the instant second or successive § 2255 motion
to vacate pursuant to 28 U.S.C. §§ 2244(b) and
2255(h). See (Doc. No. 4). Petitioner filed his
pro se § 2255 motion to vacate on June 6, 2016,
and the Federal Public Defender filed a supplement on his
behalf on June 23, 2016. (Doc. Nos. 1, 2). Petitioner again
argues that he is eligible for relief under Johnson
because his prior convictions for North Carolina breaking and
entering do not support a career offender sentence pursuant
to U.S. Sentencing Guidelines § 4B1.2.
and the United States both filed motions to stay this action
pending the United States Supreme Court's decision in
Beckles v. United States, Supreme Court No. 15-8455.
(Doc. Nos. 3, 6). The Government's motion to stay was
dismissed but Petitioner's motion to stay remains
pending. See (Doc. No. 8). Petitioner's motion
for stay is now moot because the Supreme Court decided
Beckles on March 6, 2017, and held that the advisory
Guidelines are not subject to vagueness challenges.
Beckles v. United States, 137 S.Ct. 886 (2017).
Federal Public Defender filed a motion to withdraw from this
case on May 11, 2017, and relief was denied without prejudice
for counsel to support the motion with either his
client's written consent or a showing of good cause.
(Doc. Nos. 7, 9).
has now filed an amended motion to withdraw in which he
explains that he determined that Petitioner's
Johnson claim has no merit in light of
Beckles, and seeks to withdraw as counsel so that
Petitioner may continue to pursue relief pro se, if
he chooses to do so. (Doc. No. 11). The Federal Public
Defender's motion to withdraw is granted.
Government has filed a response arguing that the relief
Petitioner seeks has been foreclosed by Beckles.
(Doc. No. 10).
STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). Rule 4(b) of the Rules Governing
Section 2255 Proceedings provides that courts are to promptly
examine motions to vacate, along with “any attached
exhibits and the record of prior proceedings . . .” in
order to determine whether the petitioner is entitled to any
relief on the claims set forth therein. After examining the