United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN United States District Judge
matter is before the court on petitioner's motion to
vacate, set aside, or correct sentence, made pursuant to 28
U.S.C. § 2255, (DE 186), and the government's motion
to dismiss. (DE 190). Petitioner did not respond to the
motion to dismiss, and the time period for doing so has
expired. The issues raised are ripe for ruling. For the
reasons that follow, this court denies petitioner's
motion and grants the government's motion to dismiss.
16, 2015, petitioner pleaded guilty to 1) conspiracy to
distribute and possess with intent to distribute 100 grams or
more of heroin and a quantity of marijuana, in violation of
21 U.S.C. §§ 841 and 846 (count one); 2) intent to
distribute and distribution of a quantity of heroin and
aiding and abetting, in violation of 21 U.S.C. § 841 and
18 U.S.C. § 2 (counts three and five); and 3) possession
with intent to distribute a quantity of marijuana and 3,
4-Methylenedioxymethamphetamine (MDMA) and aiding and
abetting, in violation of 21 U.S.C. § 841 and 18 U.S.C.
§ 2. On September 15, 2015, the court sentenced
petitioner to a term of imprisonment of 204 months.
Petitioner appealed, and the court of appeals affirmed the
judgment on May 31, 2016. Petitioner sought certiorari, and
the Supreme Court denied the petition for writ of certiorari
on October 18, 2016.
October 17, 2017, petitioner filed the instant motion to
vacate pursuant to 28 U.S.C. § 2255, arguing that he was
incorrectly sentenced as a career offender because the state
court convictions upon which that status was based are
subject to challenges in state court. Petitioner seeks to
have this court “stay” the instant § 2255
petition pending the outcome of challenges to his state court
convictions. (Mot. (DE 186) at 4). The government moves to
dismiss on the basis that petitioner's claim provides no
basis for correction of his sentence, where petitioner has
two prior predicate convictions that are not subject to
challenges in state court.
Standard of Review
petitioner seeking relief pursuant to 28 U.S.C. § 2255
must show that “the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). “Unless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect
thereto.” Id. § 2255(b).
support of his claim, petitioner submits a scheduling order
for post-conviction relief in Bergen County, New Jersey, No.
96-001744-001 (See 186-3 at 1), corresponding to a
conviction at paragraph 31 in the presentence report
qualifying as a predicate conviction for petitioner's
career offender status. Petitioner also submits documents
regarding an appeal of an order denying post-conviction
relief in Essex County, New Jersey, which may pertain to a
conviction at paragraphs 30, 32, or 33, each of which
independently qualify as predicate convictions for
petitioner's career offender status. (See id at
2-14). Even if two of the aforementioned convictions are
overturned upon post-conviction review, which is not likely
given the age of such prior convictions, petitioner would
still have at least two other qualifying controlled substance
offenses in his record. (See Presentence Report
(PSR) ¶¶ 30-33). Accordingly, petitioner has not
demonstrated a meritorious claim for relief, nor has he
provided a sufficient basis to stay this § 2255 matter.
Accordingly, petitioner's motion is denied.
Certificate of Appealability
certificate of appealability may issue only upon a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The petitioner
must demonstrate that reasonable jurists could debate whether
the issues presented should have been decided differently or
that they are adequate to deserve encouragement to proceed
further. Miller-El v. Cockrell 537 U.S. 322, 336-38
(2003); Slack v. McDaniel 529 U.S. 473, 484 (2000).
After reviewing the claims presented on collateral review in
light of the applicable standard, the court finds that a
certificate of appealability is not warranted.
on the foregoing, this court DENIES petitioner's motion
to vacate (DE 186), and GRANTS the government's motion to
dismiss (DE 190). This court also DENIES a certificate ...