United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE United States District Judge
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.
OF THE CASE
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
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
26, 2017,  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.
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.
Motion to Dismiss
Standard of Review
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).
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. ...