United States District Court, E.D. North Carolina, Western Division
Malcolm J. Howard Senior United States District Judge.
matter is before the court on the government's motion to
dismiss, [DE #44], petitioner's motion to vacate his
sentence under 28 U.S.C. § 2255, [DE #37]. Petitioner
has filed a response, [DE #47]. Petitioner has also filed a
motion to run sentences concurrently. [DE #36]. This matter
is ripe for adjudication.
February 10, 2015, petitioner pled guilty, pursuant to a
written plea agreement, to a one-count indictment charging
him with possession of a firearm and ammunition by a prior
convicted felon in violation of 18 U.S.C. §§
922(g)(1) and 924. [DE #1 and #21] . Prior to sentencing,
petitioner filed a motion for new counsel, [DE #29], alleging
he was not advised of the penalties under 18 U.S.C. §
924(e), but this motion was denied as defendant advised in
open court at his sentencing that he wished to proceed with
his current attorney. On June 9, 2015, the court sentenced
petitioner to a term of imprisonment of 120 months, following
the granting of the government's motion for downward
departure under USSG § 5K1.1 and 18 U.S.C. §
3553(e). [DE #25 and #30]. The court entered its judgment on
June 18, 2015, and defendant did not file a notice of appeal.
On June 16, 2016, petitioner timely filed a motion to vacate
his sentence, asserting the following two claims: (1) he was
not an armed career criminal as his predicate offenses were
not violent felonies and (2) he did not knowingly and
voluntarily enter a plea of guilty.
Motion to Vacate, [DE #37]
Armed Career Criminal
first alleges, in light of Johnson v. United States,
235 S.Ct. 2551 (2015), he is no longer an armed career
criminal as his two convictions for North Carolina robbery
with a dangerous weapon and one conviction of North Carolina
breaking and entering are not qualifying predicate offenses
to designate him as an armed career criminal under 18 U.S.C.
§ 924(e), the Armed Career Criminal Act,
Carolina robbery with a dangerous weapon is a violent felony
under the force clause of ACCA. United States v.
Smith, 638 F. App'x 216, 219 (4th Cir. Jan. 26,
2016) (per curiam). North Carolina breaking and entering is a
violent felony under the enumerated offenses clause of ACCA.
United States v. Mungro, 754 F.3d 267, 272 (4th Cir.
2014). Therefore, petitioner has three convictions that
qualify as violent felonies to satisfy the requirement for
categorizing him as an armed career criminal under ACCA. 18
U.S.C. § 924(e)(1). Therefore, the government's
motion to dismiss is granted as to this claim.
Entry of Plea
prove ineffective assistance of counsel, petitioner must
satisfy the dual requirements of Strickland v.
Washington, 466 U.S. 668, 687 (1984). First, petitioner
must show that counsel's performance was deficient in
that it fell below the standard of reasonably effective
assistance. Id. at 687-91. In making this
determination, there is a strong presumption that
counsel's conduct was within the wide range of reasonable
professional assistance. Id. at 689. The
Strickland court reasoned "[i]t is all too
tempting for a defendant to second-guess counsel's
assistance after conviction or adverse sentence, and it is
all too easy for a court, examining counsel's defense
after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable."
Id. Second, petitioner "must show that there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Id. at 694.
response to the government's motion to dismiss,
petitioner alleges due to the "misdirection" of
counsel, he was not advised of the penalties associated with
a § 924(e) violation. [DE #47 at 1-2].
extent petitioner argues the ineffective assistance of
counsel before the entry of his written plea agreement,
signed by petitioner and his counsel, the court notes
petitioner's written plea agreement expressly provided,
[i]f the defendant's criminal history subjects the
defendant to the sentencing enhancement of 18 U.S.C. §
924(e), then the applicable penalties in lieu of ...