United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge.
MATTER is before the Court upon the Government's
Motion to Dismiss (Doc. No. 5) Petitioner Jerry Thomas
Collins's 28 U.S.C. § 2255 Motion to Vacate, Set
Aside, or Correct Sentence (Doc. No. 1). Petitioner is
represented by the Federal Defenders of Western North
Carolina, Inc.; he seeks relief under Johnson v. United
States, 135 S.Ct. 2551 (2015).
November 3, 2006, Collins entered a straight up guilty plea
to being a felon in possession of a firearm, in violation of
18 U.S.C. 922(g)(1) (Count One); possession with intent to
distribute cocaine and 50 grams or more of cocaine base, in
violation of 21 U.S.C. § 841 (Count Two); and possession
of a firearm in furtherance of a drug-trafficking offense, in
violation of 18 U.S.C. § 924(c)(1) (Count Three).
Accept. and Entry of Guilty Plea, Doc. 18.The probation
office prepared a presentence report (“PSR”),
recommending that Collins be sentenced as a career offender
under the United States Sentencing Guidelines and an armed
career criminal under the Armed Career Criminal Act
(“ACCA”) based on his prior convictions for
attempted robbery with a dangerous weapon, robbery with a
dangerous weapon, and larceny from a person. PSR ¶¶
17, 27, 31, 44-46, Doc. No. 38.
total offense level of 34 and a criminal history category of
VI, Collins's guidelines range was 322 to 387 months in
prison. PSR ¶¶ 29, 31-32, 48, 70; U.S.S.G. §
4B1.1(c)(2). Due to application of the ACCA, Count One
carried a mandatory minimum sentence of not less than 15
years in prison; Count Two was not less than ten years in
prison and no more than life, and Count Three required a
mandatory consecutive sentence of not less than five years.
PSR ¶ 69. This Court sentenced Collins to 262 months of
imprisonment in Counts One and Two, to run concurrently, and
to 60 months of imprisonment in Count Three, to run
consecutively. J., Doc. No. 22.
12, 2016, Collins filed the present successive motion to
vacate, dated June 21, 2016, after he received authorization
from the Fourth Circuit to do so. (Doc. No. 1; Doc. No. 1-1.)
The Federal Defenders of Western North Carolina entered a
notice of appearance and a motion to stay (Doc. Nos. 3-4)
pending the Fourth Circuit's decision in United
States v. Burns-Johnson, which this Court granted.
Fourth Circuit has issued its opinion in
Burns-Johnson, 864 F.3d 313 (4th Cir.), cert
denied, 138 S.Ct. 461 (2017), and the Government has
filed a Motion to Dismiss Collins's § 2255 Motion.
The Government contends relief is foreclosed by the Fourth
Circuit's decision in Burns-Johnson and the
Supreme Court's decision in Beckles v. United
States, 137 S.Ct. 886 (2017). Collins has neither
responded to the Government's Motion to Dismiss, nor
sought an extension of time to do so.
STANDARD OF REVIEW
12(b)(6) of the Federal Rules of Civil Procedure provides for
the dismissal of an action based upon a “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). To state a viable claim for relief
under § 2255, a petitioner must prove that: (1) the
sentence imposed “violat[ed] . . . the Constitution or
laws of the United States;” (2) “the court was
without jurisdiction to impose such a sentence;” or (3)
“the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack.”
28 U.S.C. § 2255(a). After examining the record in this
matter, the Court finds this action can be resolved based on
the record and governing case law. See Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970).
Armed Career Criminal Status
contends that his sentence in Count One must be vacated
because he no longer qualifies as an armed career criminal in
light of the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). The ACCA, 18
U.S.C. § 924(e), provides for a mandatory minimum term
of fifteen years' imprisonment for any defendant who
violates 18 U.S.C. § 922(g)
has three previous convictions for a “violent
felony” or a “serious drug offense.” 18
U.S.C. § 924(e)(1). When Petitioner was sentenced, a
“violent felony” was defined as any crime
punishable by a term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another [(the