Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Davis v. United States

United States District Court, E.D. North Carolina, Western Division

January 9, 2018

MOSES LIRAN DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TERRENCE W. BOYLE United States District Judge

         This matter comes before the court on respondent's motion to dismiss (DE 119) petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner did not respond to respondent's motion. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court grants respondent's motion to dismiss.

         STATEMENT OF THE CASE

         On July 25, 2008, petitioner was found guilty, following a jury trial before Judge James C. Fox, of the following: possession with the intent to distribute a quantity of cocaine and a quantity of marijuana in violation of 21 U.S.C. § 841 (count one); felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g) and 924 (count two); and the use and carry of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (count three). United States v. Davis. No. 5:07-CR-343-BO (E.D. N.C. July 25, 2008). On November 14, 2008, petitioner was sentenced to a total term of 420 months imprisonment. Id. (Nov. 14, 2008). Petitioner's conviction and sentence subsequently was affirmed on appeal. See United States v. Davis. 383 Fed.Appx. 269 (4th Cir. 2010).

         On June 10, 2011, petitioner filed his first pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, which was dismissed on December 29, 2011. Davis. No. 5:07-CR-343-BO (June 10, 2011 and Dec. 29, 2011). Petitioner subsequently sought permission in the Fourth Circuit Court of Appeals to file a second or successive § 2255 motion based upon the Supreme Court's decision in Johnson v. United States. 135 S.Ct. 2551 (2015). See In re Davis. No. 16-9710 (4th Cir. July 25, 2016). On July 25, 2016, the Fourth Circuit granted petitioner authorization to file a second or successive § 2255 motion finding that petitioner made a. prima facie showing that the new rule of constitutional law announced in Johnson, and held to apply retroactively on collateral review by Welch v. United States. 136 S.Ct. 1257 (2016), may apply to his case. Id.

         On May 26, 2017, [1] petitioner filed the instant § 2255 petition asserting that his designation as a career offender under the sentencing guidelines was improper, based upon the United States Supreme Court's holding in Johnson. Petitioner also alleged that his sentence was improperly enhanced using a consolidated judgment. On the same date, the instant action was re-assigned to the undersigned. Respondent subsequently moved to dismiss petitioner's petition pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the petition is time-barred. Alternatively, respondent argues that petitioner failed to state a claim upon which relief may be granted. Petitioner did not respond to respondent's motion.

         On November 9, 2017, the court directed respondent to supplement its motion to dismiss. The court specifically directed respondent to address petitioner's argument that his sentencing enhancement pursuant to § 851 was improper because the offenses used to enhance his sentence were part of a consolidated judgment, which petitioner contends constitutes a single sentence. Respondent complied with the court's November 9, 2017, order.

         DISCUSSION

         A. Motion to Dismiss

         1. Standard of Review

         A motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin. 980 F.2d 943, 952 (4th Cir. 1992). A claim is stated if the complaint contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009) fquoting Bell Atlantic Corp. v. Twomblv. 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the [petitioner], " but does not consider "legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement [, ]... unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet. Ltd. v. Consumeraffairs.com. Inc.. 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, this plausibility standard requires a petitioner to articulate facts that, when accepted as true, demonstrate that the petitioner has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli. 588 F.3d 186, 193 (4th Cir. 2009) (internal quotations omitted). On a motion to dismiss, courts "may properly take judicial notice of matters of public record." Philips v. Pitt Cntv. Mem'l Hosp.. 572 F.3d 176, 180 (4th Cir. 2009).

         2. Analysis

         Respondent first argues that petitioner's § 2255 petition is untimely. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a motion to vacate, set aside, or correct sentence pursuant to § 2255 must be filed within one year. 28 U.S.C. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.