United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr. United States District Judge.
MATTER is before the Court on Petitioner's
pro se Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255, (Doc. No. 1), in which
he seeks relief pursuant to Mathis v. United States,
136 S.Ct. 2243 (2016).
pled guilty to two counts of bank robbery by force or
violence pursuant to a plea agreement that is supported by a
written factual proffer. (3:13-cr-218, Doc. Nos. 13, 14).
scored the base offense level for each count as 20 and added
two levels each for the robbery of a financial institution
and threat of death. (3:13-cv-218, Doc. No. 19 at
¶¶ 25-27). Applying the multiple count adjustment
resulted in a combined adjusted offense level of 26.
(3:13-cv-218, Doc. No. 19 at ¶¶ 40-42). However,
Petitioner qualifies as a career offender based on his prior
felony convictions for crimes of violence, i.e.,
common law robbery (00CRS10024), robbery affecting interstate
commerce (3:03CR186-01), burning an unoccupied building and
malicious use of explosive damage to property
(03CRS202418-19). (3:13-cv-218, Doc. No. 19 at ¶ 43),
with an offense level of 34. (3:13-cv-218, Doc. No. 19 at
¶ 43). Three levels were deducted for acceptance of
responsibility resulting in a total offense level of 31.
(3:13-cv-218, Doc. No. 19 at ¶¶ 44-46). The
criminal history section scored 11 criminal history points
and two points were added because Petitioner committed the
instant offense while under a criminal justice sentence,
resulting in a criminal history score of 13 and a criminal
history category of VI. (3:13-cv-218, Doc. No. 19 at
¶¶ 57-59). In addition, the criminal history
category for career offenders is VI. (3:13-cv-218, Doc. No.
19 at ¶ 59). This resulted in a guideline imprisonment
range of 188 to 235 months. (3:13-cv-218, Doc. No. 19 at
judgment docketed on August 8, 2014, the Court adjudicated
Petitioner guilty and sentenced him to 188 months'
imprisonment for each count, concurrent with each other and
consecutive to his sentence in case number 3:03-cr-186,
followed by three years of supervised release. (3:13-cv-218,
Doc. No. 24). He did not appeal.
filed a § 2255 Motion to Vacate through counsel on June
16, 2016, attacking his career offender sentence under
Johnson v. United States, 135 S.Ct. 2551 (2015),
case number 3:16-cv-375. Petitioner voluntarily dismissed his
petition on March 29, 2017, shortly after the Supreme Court
issued its decision in Beckles v. United States, 137
S.Ct. 886 (2017).
filed the instant pro se § 2255 Motion to
Vacate on March 26, 2018, (Doc. No. 1). He argues that he is
actually innocent of his career offender designation pursuant
to Mathis v. United States, 136 S.Ct. 2243 (2016),
and that trial and appellate counsel were ineffective for
failing to challenge his career offender designation.
STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the 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, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). Rule 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 based on the
record and governing case law. See Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970).
one-year statute of limitation applies to motions to vacate
under § 2255, which runs from the latest of:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively