United States District Court, E.D. North Carolina, Eastern Division
Malcolm J. Howard Senior United States District Judge
matter is before the court on petitioner's motion to
vacate under 28 U.S.C. § 2255, [DE #127].
Petitioner's motion for leave to file a reply, [DE #150],
is hereby GRANTED, and petitioner's reply, [DE #151], is
considered timely filed by this court. The government's
motion for extension of time to file a response, [DE #170],
is hereby GRANTED, and government's response, [DE #171],
is considered timely filed by this court. Petitioner has also
filed a motion for new sentencing hearing, [DE #163], and a
motion to withdraw career offender argument, [DE #176]. This
matter is ripe for adjudication.
February 7, 2002, petitioner was found guilty by a jury, of
unlawfully possessing a firearm as a prior convicted felon in
violation of 18 U.S.C. § 922(g)(1) (Count One);
possession with intent to distribute at least five (5) grams
of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(Count Two); and using and carrying a firearm during and in
relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(c) (Count Three). At petitioner's
sentencing hearing on August 6, 2002, petitioner was found to
be subject to an enhanced penalty under 18 U.S.C. §
924(e) (1) of the Armed Career Criminal Act
("ACCA"), having been previously convicted of New
York second degree manslaughter; Maryland manslaughter by
vehicle; and New York first degree robbery. [PSR at 5-6
¶¶I5-I7, at 10 ¶47; DE #146-1; DE #146-2; DE
#146-3; DE #146-4].
of a maximum term of imprisonment of ten years, petitioner
was subject to a minimum term of imprisonment of fifteen
years under the ACCA. [PSR at 10 ¶47]; see 18 U.S.C.
§§ 924(e) (1) and (g) (2002) . Petitioner was
sentenced to a term of imprisonment of 262 months on Counts
One and Two, to run concurrently, and 60 months on Count
Three to be served consecutively to the term of imprisonment
in Counts One and Two, for a total term of imprisonment of
322 months, with five years of supervised release on each
count, to be served concurrently. [DE #46 at 2-3] .
Petitioner appealed to the Fourth Circuit on August 9, 2002,
and his conviction was affirmed by the Fourth Circuit in an
unpublished opinion on June 9, 2003. [DE #52]. His petition
for certiorari was denied by the Supreme Court on November 3,
filed a motion to vacate under 28 U.S.C. § 2255 on May
26, 2004, [DE #59, #64, #69], and the government's motion
to dismiss this motion was granted on December 5, 2005. [DE
#74]. Petitioner appealed this dismissal, [DE #78], and the
Fourth Circuit dismissed the appeal on August 18, 2006, [DE
#83]. Petitioner filed another motion to vacate under §
2255 on July 30, 2012, [DE #92], which motion was dismissed
on October 24, 2013, [DE #104] . Petitioner, by and through
counsel, filed another motion to vacate under 28 U.S.C.
§ 2255, [DE #118], on March 17, 2016. This court
dismissed the motion without prejudice for the petitioner to
seek authorization to file this application in the Eastern
District of North Carolina. [DE #122]. On May 16, 2016, the
Fourth Circuit granted authorization to petitioner to file a
second or successive § 2255 motion, "thus
permitting consideration of the motion by the district court
in the first instance." [DE #126]. Petitioner, by and
through counsel, filed the instant motion to vacate his
sentence under 28 U.S.C. § 2255 on May 17,
2016. [DE #127] .
contends his motion to vacate should be granted for two
reasons. First, petitioner contends he is no longer an armed
career criminal under the Armed Career Criminal Act as
twoof the predicate convictions used to
enhance his punishment under the ACCA can no longer be
considered crimes of violence in light of Johnson v.
United States, 135 S.Ct. 2551 (2015). [DE #127 at 4].
Second, petitioner argues also in light of Johnson,
he is no longer a career offender and that Beckles v.
United States, 137 S.Ct. 886 (2017), does not apply to
his case because Beckles analyzed the applicability
of Johnson to advisory guidelines, rather than the
pre-United States v. Booker, 543 U.S. 220 (2005)
mandatory guidelines as here. [DE #146 at 1, 9-13].
Petitioner's Motion to Withdraw Career Offender
moves to withdraw his second claim regarding the application
of Johnson to the mandatory guidelines, as this
motion is untimely in light of the Fourth Circuit's
recent decision in United States v. Brown, 868 F.3d
297 (4th Cir. 2017), reh' g en banc
denied, No. 16-7056 (Feb. 26, 2018). [DE #176 at 1]. The
court notes the government agrees that this claim of
petitioner has no merit in light of Brown, [DE #171
at 3-4; DE #178 at 2-3]. For the foregoing reasons,
petitioner's motion to withdraw his career offender
argument, [DE #176], is hereby GRANTED.
Petitioner's Motion to Vacate
argues in light of Johnson, New York second degree
manslaughter and Maryland manslaughter by vehicle can no
longer be considered crimes of violence under the ACCA. [DE
#127 at 4; #146 at 4-9].
has timely filed the instant motion to vacate on May 17,
2016, within one year from the date on which the right
asserted was initially recognized by the Supreme Court and
made retroactively applicable. See Welch v. United
States, 136 S.Ct. 1257 (2016) (declaring
Johnson (holding the residual clause of the ACCA
unconstitutional), retroactively applicable) .
parties, and the court, agree that in light of
Johnson, petitioner is no longer an armed career
criminal. Therefore, petitioner's motion to vacate is
GRANTED on this issue. Petitioner's motion for a new
sentencing hearing is GRANTED. The court notes that while the
government has requested the court to simply correct the
sentence, the court ...