United States District Court, E.D. North Carolina, Western Division
Earl Britt, Senior U.S. District Judge
matter is before the court on the government's motion to
dismiss petitioner's 28 U.S.C. § 2255 motion. (DE #
268.) The Clerk notified petitioner of his obligation to file
a response to the motion to dismiss, (DE # 278), but
petitioner has not filed anything in response, and the time
within which to do so has expired.
2004, pursuant to a plea agreement, petitioner pled guilty to
conspiracy to distribute and possession with intent to
distribute more than 50 grams of cocaine base and using or
carrying a firearm in furtherance of a drug trafficking crime
and aiding and abetting the same. In 2005, after finding the
petitioner qualified as a career offender under the
sentencing guidelines, the court sentenced petitioner to 273
months imprisonment on each count, to run concurrently.
Petitioner did not appeal. In 2016, petitioner filed pro
se the instant § 2255 motion. (DE # 259.)
petitioner filed his § 2255 motion, the Office of the
Federal Public Defender entered a notice of appearance on
behalf of him. The government then filed the instant motion
to dismiss. Several months later, the Office of the Federal
Public Defender filed a motion to withdraw from
representation, which the court allowed. The court directed
the government to serve its motion and supporting memorandum
on petitioner. (DE # 276.) The government did so. (DE # 277.)
As noted, despite notice of the motion, petitioner has not
filed a response.
government contends that petitioner's motion should be
dismissed for failure to state a claim for which relief may
be granted pursuant to Federal Rule of Civil Procedure
It is well established that a motion filed under Rule
12(b)(6) challenges the legal sufficiency of a complaint, and
that the legal sufficiency is determined by assessing whether
the complaint contains sufficient facts, when accepted as
true, to “state a claim to relief that is plausible on
its face.” This plausibility standard requires only
that the complaint's factual allegations “be enough
to raise a right to relief above the speculative
Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473,
484 (4th Cir. 2015) (citations omitted). This same standard
applies equally to a Rule 12(b)(6) motion challenging a
§ 2255 motion. See United States v.
Reckmeyer, 900 F.2d 257 (4th Cir.1990) (unpublished)
(“We agree that a district court may properly consider
a Rule 12(b)(6) challenge to the legal sufficiency of a
§ 2255 petition.” (footnote omitted)).
asserts one claim for relief in his § 2255 motion. He
contends that he is “actually innocent” of being
a career offender and challenges his career offender
designation based on the decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). Before considering these
arguments, it is important to understand the basis for
petitioner's career offender status.
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant 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) the defendant 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) (2004). Pertinent here, a crime of
violence under the career offender guideline's so-called
“residual clause” is “any offense under
federal or state law, punishable by imprisonment for a term
exceeding one year, that . . . otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” Id. § 4B1.2(a)(2).
“‘[C]ontrolled substance offense' means an
offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance . . . .” Id. §
was sentenced as a career offender based on the following
three convictions. (PSR ¶ 78.) In February 1991, when
petitioner was 21 years old, in Franklin County District
Court, Case No. 91 CR 99, petitioner was convicted of assault
on a female and sentenced to four to five months
imprisonment, suspended. (Id. ¶ 33.) In April
1991, in Warren County District Court, in Case Nos. 91 CR
405, 91 CR 406 (consolidated for judgment), petitioner was
convicted of assault with a deadly weapon, assault by
pointing a gun, and communicating threats and sentenced to
two years imprisonment, suspended. (Id. ¶ 34.)
At the time of these 1991 convictions, the statutory maximum
term of imprisonment for the assault on a female and assault
with a deadly weapon offenses was two years. See
N.C. Gen. Stat. § 14-33(b)(1), (2) (1974). In November
1994, in Franklin County Superior Court, in Case Nos. 94 CRS
4624, 96 CRS 4625 (consolidated for judgment), petitioner was
convicted of two counts of sell or deliver cocaine and
sentenced to eight years imprisonment. (PSR ¶ 36.)
support of his argument that he is actually innocent of being
a career offender, petitioner claims his consolidated
“misdemeanor” assault convictions have been
expunged and relies on those documents identified as Exhibit
A filed in support of his motion. (DE # 1, at 15.) Exhibit A
consists of: (1) what appears to be printouts of computerized
information pertaining to petitioner's second-degree
trespass, assault with a deadly weapon, and assault by
pointing a gun convictions; (2) a judgment remitting the
monetary balance due in those cases; and, (3) a 4 December
2015 affidavit of Donna Gail Richardson referring to
petitioner's assault on a female case number and stating
the affiant consents to petitioner's motion to set aside
the guilty verdict and to the State's dismissal of the
case. (Id. at 26-30.) None of these documents shows
that any of petitioner's prior state convictions has been
expunged, vacated, or disposed of.
assuming that petitioner might be factually innocent of the
assault on a female conviction, cf. United States v.
Maybeck, 23 F.3d 888, 892-94 (4th Cir. 1994) (applying
actual innocence exception in § 2255 to noncapital
sentencing proceeding where the defendant was innocent of one
of the two convictions used to determine he was a career
offender), his two other career offender predicate
convictions (assault with a deadly weapon and sell or deliver
cocaine) remain. As for those other convictions, the decision
in Johnson does not offer petitioner assistance. In
Johnson, the Court held that the residual clause in
the violent felony definition of the Armed Career Criminal
Act was unconstitutionally vague. United States v.
Lee, 855 F.3d 244, 246 (4th Cir. 2017). However,
“Johnson's vagueness holding does not
apply to the residual clause in [the career offender
guideline].” Id. at 247 (citing Beckles v.
United States, 137 S.Ct. 886, 892 (2017)).
Johnson also has no bearing on petitioner's
controlled substance conviction. See United States v.
Outen, Cr. No. 3:09-826-CMC, 2017 WL 2277193, at *2
(D.S.C. May 25, 2017) (recognizing that Johnson does
not “address predicate convictions based on drug
offenses”). As such, petitioner is not entitled to
relief on his habeas corpus claim.
government's motion is ALLOWED, and the § 2255
motion is DISMISSED. The court finds that petitioner has not
made “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Pursuant to Rule 11(a) of the ...