United States District Court, W.D. North Carolina, Charlotte Division
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 seeking
relief pursuant to Johnson v. United States, 135
S.Ct. 2551 (2015), (Doc. No. 1), a supporting memorandum,
(Doc. No. 2), the Government's Motion to Dismiss
Petitioner's Motion to Vacate, Set Aside, or Correct
Sentence, (Doc. No. 5), and Petitioner's Motion to
Respond to Government's Motion to Dismiss, (Doc. No. 7).
Also pending are Respondent's Motion for Extension of
Time, (Doc. No. 4), and Motion to Seal, (Doc. No. 6), and
Petitioner's Motion to Amend, (Doc. No. 8), and Motion
for Default Judgment, (Doc. No. 9). For the reasons that
follow, the Motion to Vacate will be dismissed with prejudice
as procedurally defaulted.
was charged in the underlying criminal case with: (1)
conspiracy to possess with the intent to distribute cocaine,
(2) using and carrying firearm during and in relation to a
drug trafficking crime, and aiding and abetting the same; and
(3) possession of a firearm by a convicted felon in violation
of 18 U.S.C. § 922(g)(1). (3:93-cr-254, Doc. No. 1).
guilty to the § 922(g) offense charged in Count (3)
pursuant to a written plea agreement in exchange for the
Government's dismissal of Counts (1) and (2).
(3:93-cr-254, Doc. No. 27). As part of the plea agreement,
the parties stipulated that Petitioner qualifies as an armed
career criminal pursuant to 18 U.S.C. § 924(e) and that
the appropriate disposition of the case is a 15-year
sentence. (3:93-cr-254, Doc. No. 27 at 2). The plea agreement
provides that, so long as the sentence does not exceed the
maximum applicable sentencing guideline range, Petitioner
knowingly and expressly waives his right to contest either
the conviction or sentence in any post-conviction proceeding
under 28 U.S.C. § 2255 except on the allegation of
ineffective assistance of counsel or prosecutorial
misconduct. (3:93-cv-254, Doc. No. 27 at 3).
presentence investigation report (“PSR”) prepared
on April 27, 1994, calculated the base offense level as 24
for violating 922(g)(1). (3:93-cr-254, Doc. No. 79 at ¶
15). Four levels were added because Petitioner used or
possessed a firearm or ammunition in connection with another
felony offense, or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that
it would be used or possessed in connection with another
felony offense. (3:93-cr-254, Doc. No. 79 at ¶ 16).
Three levels were deducted for acceptance of responsibility.
(3:93-cr-254, Doc. No. 79 at ¶ 22). This resulted in an
offense level of 27. (3:93-cr-254, Doc. No. 79 at ¶ 22).
However, the PSR concluded that Petitioner qualifies as an
armed career criminal with an offense level of 34. After
applying a reduction for acceptance of responsibility, the
total offense level was 31. (3:93-cr-254, Doc. No. 79 at
¶ 25). Because the criminal history category for an
armed career criminal is VI, the resulting guideline range
became 188-235 months' imprisonment and three to five
years of supervised release. (3:93-cr-254, Doc. No. 79 at
¶¶ 46, 69, 72).
judgment docketed on July 7, 1994, the Court sentenced
Petitioner as an armed career criminal to 180 months'
imprisonment followed by five years of supervised release.
(3:93-cr-254, Doc. No. 33).
Court granted the United States' Rule 35 motion to modify
the sentence on March 23, 1995. (3:93-cr-254, Doc. Nos. 40,
42). The Amended Judgment, docketed on May 3, 1995, reduced
the sentence of imprisonment to 120 months, and the term of
supervised release remained five years. (3:93-cr-254, Doc.
filed a § 2255 petition that was docketed as a new civil
case, number 3:95-cv-91-RDP. (3:93-cr-254, Doc. No. 39). The
Court denied relief on June 15, 1995. (3:93-cr-254, Doc. No.
was released from prison in June 2002 to begin serving his
five-year term of supervised release. See
(3:93-cr-254, Doc. No. 65 at 1). Less than three years later
on September 14, 2004, a probation arrest warrant was issued
alleging that Petitioner violated supervised release by,
inter alia, committing the new law violation of
possession with intent to sell and deliver cocaine and
marijuana. (3:93-cr-254, Doc. Nos. 65, 75). Petitioner
admitted the violations and, on September 13, 2006, the Court
docketed a judgment revoking Petitioner's supervised
release and sentencing him to 24 month's imprisonment to
run consecutively to any other sentence. (3:93-cr-254,
Doc. No. 78). He did not appeal.
22, 2016, the Fourth Circuit granted Petitioner permission to
file a successive § 2255 petition to attack his sentence
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015). (Doc. No. 1-1).
argues in his § 2255 Motion to Vacate that he is not an
armed career criminal because two of his prior convictions,
misdemeanor assault and walk-away escape from a work release
job, are not predicate violent felony offenses for purposes
of the Armed Career Criminal Act (“ACCA”).
Neither of these prior convictions “consist of violence
or resulted in anything” and do not satisfy ACCA's
force clause. (Doc. No. 1 at 4). Without the ACCA
enhancement, his guideline range would have been 36
months' imprisonment. His enhanced sentence and
supervised release sentence are both based on the illegal
ACCA “root” and therefore his present supervised
release revocation sentence violates due process. (Doc. No. 2
at 1-2). Petitioner claims that he is currently
“under” the ACA sentence and the supervised
release revocation sentence that came from it. (Doc. No. 2 at
5). Further, he argues that the supervised release sentence
violates due process because the guideline range increases to
the level for Grade A violations pursuant to U.S.S.G. §
7B1.1, if the violation is a crime of violence under §
4B1.2. Applying this section to Petitioner violates due
process pursuant to Johnson, which must be applied
retroactively in the guidelines context. Petitioner contends
that his claim is cognizable under § 2255 because he is
serving an ACCA supervised release sentence that exceeds the
statutory maximum and is based on a constitutional error.
This petition is timely under 2255(f)(3) because it was filed
within a year of Johnson's issuance.
Government does not contest the instant petition's
timeliness. Instead, it argues that Petitioner's
Johnson claim is procedurally defaulted because he
did not raise it on direct appeal. In addition, the
Government asserts that the 24-month sentence Petitioner
received after the term of supervised release was revoked did
not exceed the statutory maximum he could have received if he
had only been sentenced for a § 922(g) offense without
the ACCA enhancement. Therefore, even if Petitioner could
show he was improperly sentenced to five years of supervised
release rather than three years, he has not shown he is
entitled to a reduced sentence because the violation occurred
and the revocation sentence imposed were within the statutory
limits for a non-enhanced § 922(g) offense.