United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge.
MATTER is before the Court on the Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 [Doc. 1] and the Government's Motion
to Dismiss [Doc. 5]. Petitioner is represented by Joshua
Carpenter of the Federal Defenders of Western North Carolina.
October 8, 2008, the Petitioner Frankie Lamar Moore, Jr. was
charged with possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). [Criminal Case No.
1:08-cr-00101-MR (“CR”), Doc. 1]. The Petitioner
pleaded guilty to the charge pursuant to a written plea
agreement. [CR Doc. 10]. In the parties' agreement, the
Petitioner agreed to waive his right to challenge his
conviction or sentence in a motion filed under 28 U.S.C.
§ 2255, except on the basis of ineffective assistance of
counsel and prosecutorial misconduct. [Id. at ¶
19]. The Petitioner also acknowledged that the maximum term
of imprisonment for a § 922(g) offense was ten
years' imprisonment, but that if he were found to be an
armed career criminal within the meaning of the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (“ACCA”),
he would face a statutorily required minimum sentence of 15
years and a maximum sentence of life imprisonment.
[Id. at ¶ 3].
December 31, 2008, the Honorable Dennis L. Howell, United
States Magistrate Judge, conducted a plea colloquy in
accordance with Rule 11 of the Federal Rules of Criminal
Procedure. [CR Doc. 11]. During the colloquy, the Petitioner
affirmed that he understood the charge to which he was
pleading guilty and the maximum penalties he faced.
[Id. at ¶ 12]. The Petitioner also affirmed
that he was, in fact, guilty of the offense to which he was
pleading [Id. at ¶ 27], and that he understood
that if his sentence was more severe than he expected, he
would still be bound by his plea and have no right to
withdraw it [Id. at ¶ 22]. The Petitioner
further affirmed that he understood that, by executing the
plea agreement, he had waived his right to challenge his
conviction and/or sentence in a post-conviction proceeding,
except on the bases of ineffective assistance of counsel or
prosecutorial misconduct. [Id. at ¶ 34]. At the
conclusion of the hearing, Judge Howell accepted the
Petitioner's guilty plea as knowingly and voluntarily
entered. [Id. at 9].
advance of the Petitioner's sentencing, the probation
officer prepared a Presentence Report (“PSR”).
[CR Doc. 13]. In the PSR, the probation officer recommended
that the Petitioner be found to be an armed career criminal
citing the following prior convictions:
(1) a consolidated North Carolina conviction for felony
discharge of a firearm/weapon into occupied property and
felony breaking and entering;
(2) two North Carolina convictions for felony common law
(3) a North Carolina conviction for assault with a deadly
weapon inflicting serious injury (“AWDWISI”); and
(4) a South Carolina conviction for armed
[Id. at ¶¶ 28, 30, 35, 36, 37].
Petitioner's sentencing hearing was held on June 1, 2009,
before the Honorable Lacy H. Thornburg, United States
District Judge. At the hearing, the Court calculated a
total offense level of 30 and a criminal history category of
VI, which would yield an advisory Guidelines range of 168 to
210 months' imprisonment. The Court, however, also
determined the Petitioner to be an armed career criminal,
thus subjecting him to a mandatory minimum term of 180
months, thus adjusting his Guidelines range to 180 to 210
months. The Court sentenced the Petitioner to 195 months'
imprisonment, the middle of that Guidelines range. [CR Doc.
16]. The Petitioner did not appeal.
2, 2016, the Petitioner filed the present motion to vacate
his sentence under 28 U.S.C. § 2255, arguing that his
sentence was improperly enhanced under the ACCA in light of
Johnson v. United States, 135 S.Ct. 2551 (2015).
[Doc. 1]. On July 12, 2016, the Government filed a motion to
dismiss the Petitioner's motion, contending that the
Petitioner waived his right to seek collateral review of his
sentence, except on bases not asserted in his motion; that
the Petitioner's claim is procedurally defaulted; and
that, in any event, he still has at least three qualifying
predicates for purposes of the ACCA. [Doc. 5]. The Petitioner
filed a reply in support of his motion to vacate on August
16, 2016. [Doc. 6]. At the request of the Court, the parties
filed supplemental briefs in December 2017. [Docs. 8, 9, 10].
been fully briefed, this matter is ripe for disposition.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the argument presented by the Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
Government first contends that the Petitioner knowingly and
voluntarily waived in his Plea Agreement any right to
challenge his sentence in a post-conviction proceeding except
for claims of ineffective assistance or prosecutorial
misconduct. Accordingly, the Government contends, Petitioner
has waived any right to assert his Johnson claim.
to the Government's contention, the Petitioner's
claim is not barred by his appellate waiver. While the
Petitioner's Plea Agreement includes a waiver of all
rights to appellate and post-conviction relief except on the
grounds of prosecutorial misconduct and ineffective
assistance of counsel, it is well-established that “a
defendant could not be said to have waived his right to . . .
review of a sentence imposed in excess of the maximum penalty
provided by statute[.]” United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992); see also
United States v. Crisp, No. 2:14-cr-00023-MR, Doc. 9 at
6-7 (W.D. N.C. May 7, 2015) (“The language used in the
parties' Plea Agreement stipulating that the Defendant
may only appeal on the grounds of ineffective assistance and
prosecutorial misconduct is not comprehensively correct. In
addition to these grounds, a defendant can never waive his
right to appeal a claim that a conviction was obtained in
violation of the Sixth Amendment right to counsel; or that a
sentence was imposed in excess of the maximum penalty
provided by statute; or that a sentence was based on a
constitutionally impermissible factor such as race.”)
(internal citations omitted).
without the ACCA enhancement, the Petitioner would have faced
a statutory maximum sentence of 120 months.
See 18 U.S.C. § 924(a)(2). With the ACCA
enhancement, however, the Petitioner faced a mandatory
minimum sentence of at least 180 months.
See 18 U.S.C. § 924(e). If the Petitioner's
ACCA enhancement is determined to be invalid, then the
Petitioner received a sentence greater than the maximum
sentence he could have faced ...