United States District Court, E.D. North Carolina, Southern Division
C. DEVER III Chief United States District Judge.
13, 2016, Elson Pressley ("Pressley") moved under
28 U.S.C. § 2255 to vacate, set aside, or correct his
246-month sentence [D.E. 60] and requested appointment of
counsel [D.E. 61]. On October 28, 2016, the Federal Public
Defender entered an appearance to represent Pressley [D.E.
66], thereby mooting his request for counsel. On
January 3, 2017, the government moved to dismiss
Pressley's section 2255 motion [D.E. 68] and filed a
memorandum in support [D.E. 69]. On January 24, 2017,
Pressley responded in opposition [D.E. 70]. On July 25, 2017,
the court ordered the government to produce all
Shepard-approved documents concerning the 1984
housebreaking convictions listed in paragraphs 7, 8, and 9 of
Pressley's Presentence Investigation Report
("PSR") [D.E.72]. See Shepard v. United
States, 544 U.S. 13.26 (2005). On July 31, 2017, the
government produced the Shepard-approved documents
[D.E. 75]. On August 4, 2017, the government filed a
supplemental brief [D.E. 76]. As explained below, the court
grants the government's motion to dismiss and dismisses
Pressley's section 2255 motion.
18, 2007, Pressley pleaded guilty to being a felon in
possession of a firearm and ammunition. See [D.E.
29] 2-20. On September 25, 2007, at Pressley's sentencing
hearing, the court calculated Pressley's total offense
level to be 33, his criminal history category to be VI, and
his advisory guideline range to be 235 to 293 months'
imprisonment. See Sentencing Tr. [D.E. 30] 4-8. After
thoroughly considering all relevant factors under 18 U.S.C.
§ 3553(a), the court sentenced Pressley to 246
months' imprisonment and 5 years of supervised release.
See Id. at 16-21.
appealed. On May 2, 2008, the United States Court of Appeals
for the Fourth Circuit concluded that Pressley was an armed
career criminal and affirmed Pressley's sentence. See
United States v. Pressley, 276 Fed.Appx. 271 (4th Cir.
2008) (per curiam) (unpublished).
December 23, 2009, this court dismissed Pressley's first
section 2255 motion for failure to state a claim upon which
relief can be granted. See [D.E. 43]. On June 27, 2014, this
court dismissed Pressley's second 2255 motion as
successive. See [D.E. 48].
2, 2016, the United States Court of Appeals for the Fourth
Circuit authorized Pressley to file a successive 2255 motion
in light of Johnson v. United States, 135 S.Ct. 2551
(2015), and Welch v. United States, 136 S.Ct. 1257
(2016). On June 13, 2016, Pressley filed his section 2255
motion [D.E. 60] and argues that, due to Johnson, he
is no longer an armed career criminal under the Armed Career
Criminal Act ("ACCA") and his statutory maximum
sentence is 120 months' imprisonment. See [D.E. 60] 5-6,
12; 18 U.S.C. § 924(e). The government disagrees and
moves to dismiss Pressley's motion. See [D.E. 68, 69].
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a claim's legal and
factual sufficiency. Fed. R.Civ. P. 12(b)(6); see
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-63,
570 (2007); Coleman v. Md. Court of Appeals, 626
F.3d 187, 190 (4th Cir. 2010), aff'd. 566 U.S.
320 (2012); Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008); accord Erickson v. Pardus, 551 U.S.
89, 93-94 (2007) (per curiam). The government may challenge
the legal sufficiency of a section 2255 petition through a
motion to dismiss under Rule 12(b)(6). See Rule 12,
Rules Governing Section 2255 Proceedings; United States
v. Frady, 456 U.S. 152, 166-68 n.15 (1982); United
States v. Reckmever, 900 F.2d 257, at *4 (4th Cir. 1990)
(unpublished table decision). In considering a motion to
dismiss, a court need not accept a pleading's legal
conclusions. See, e.g.. Iqbal. 556 U.S. at
678. Similarly, a court "need not accept as true
unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano, 521 F.3d at 302
(quotation omitted): see Iqbal. 556 U.S. at 677-79.
Moreover, a court may take judicial notice of public records
without converting a motion to dismiss into a motion for
summary judgment. See, e.g., Fed.R.Evid. 201; Tellabs,
Inc. v. Makor Issues & Rights. Ltd., 551 U.S. 308,
322 (2007); Philips v. Pitt Cty, Mem'l Hosp.,
572 F.3d 176, 180 (4th Cir. 2009). In reviewing a section
2255 motion, the court is not limited to the motion itself.
The court also may consider "the files and records of
the case." 28 U.S.C. § 2255(b); see United
States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).
argues that he is not an armed career criminal under the
ACCA. Specifically, he argues that his three 1984 South
Carolina housebreaking convictions and his 1992 South
Carolina second-degree burglary conviction do not qualify as
violent felonies under the ACCA. See PSR ¶¶ 7-9,
13. The government concedes that Pressley's 1992
second-degree burglary conviction is not a "violent
felony" under the ACCA, but argues that Presley's
three 1984 convictions for housebreaking are violent felonies
under the ACCA. See [D.E. 76] 2-4.
person convicted of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g) is ordinarily subject
to a maximum of 10 years' imprisonment. 18 U.S.C. §
924(a)(2). Under the ACCA, however, a person who has
previously been convicted of three or more convictions that
are "serious drug offense[s]" or "violent
felon[ies]" committed on separate occasions shall be
punished by a minimum of 15 years' imprisonment and up to
a maximum of life imprisonment. Id. § 924(e).
Before Johnson, a crime could qualify as a
"violent felony" in three ways. First, the
conviction could fall within the "force clause" by
having "as an element the use, attempted use, or
threatened use of physical force against the person of
another." 18 U.S.C. § 924(e)(2)(B)(i); see
Johnson, 135 S.Ct. at 2551. Second, the conviction
could be one of the enumerated offenses by fitting the
generic definition of "burglary, arson, or
extortion." Id. § 924(e)(2)(B)(ii).
Finally, the conviction could fall under the so-called
"residual clause" if it "otherwise involves
conduct that presents a serious potential risk of physical
injury to another." Id. In Johnson,
the Court invalidated the residual clause. See
Johnson, 135 S.Ct. at 2557. Thus, to qualify as a
"violent felony" under the ACCA, a conviction must
either fall within the force clause or fit the generic
definition of an enumerated offense. See Id. at
2563. The government contends that Pressley's three 1984
housebreaking convictions remain violent felonies under the
ACCA because they qualify as generic burglary.
determine whether a prior conviction qualifies as an
enumerated violent felony under the ACCA, a court uses the
categorical approach to determine "whether the elements
of the crime of conviction sufficiently match the elements of
the listed generic crime, while ignoring the particular facts
of the case." United States v. White, 836 F.3d
437, 444 (4th Cir. 2016) (quotation and alterations omitted);
see Mathis v. United States,136 S.Ct. 2243, 2248
(2016). If the elements of the crime of conviction are the
same as, or narrower than, the generic definition of an
enumerated offense in the ACCA, a conviction for the state
offense qualifies as a conviction for a crime of violence.
See White, 836 F.3d at 444-45. "But if the
[state] statute sweeps more broadly than the generic crime, a
conviction under that law cannot count as an ACCA predicate,
even if the defendant actually committed the offense in its
generic form." Descamps v. United States, 133
S.Ct. 2276, 2283 (2013). "The key... is elements, not
facts." See Id. In construing a state statute,
a federal court may not interpret the state statute
differently than the state's highest court. See
Johnson v. Fankell,520 U.S. 911, 916 (1997);
White. 836 F.3d at 446. If a state's highest
court has not ruled on an issue, a federal court looks to the
decisions of a state's intermediate appellate ...