United States District Court, W.D. North Carolina, Statesville Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE
MATTER is before the Court upon the Government's
Motion to Dismiss (Doc. No. 5) Petitioner Bobby Jermell
Dobbins's 28 U.S.C. § 2255 Motion to Vacate, Set
Aside, or Correct Sentence (Doc. No. 1). Dobbins seeks relief
under Johnson v. United States, 135 S.Ct. 2551
October 20, 2011, Dobbins pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§922(g)(1). Plea, Doc. No. 11; Accept. and Entry of
Guilty Plea, Doc. 12. The probation office prepared a
presentence report (“PSR”), recommending
Dobbins's base offense level be enhanced under United
States Sentencing Guidelines (“U.S.S.G.”) §
2K2.1(a)(2), in light of his 2002 North Carolina conviction
for assault with a deadly weapon inflicting serious injury
(“AWDWISI”) and 2003 North Carolina conviction
for taking indecent liberties with a child. PSR ¶¶
15, 33, 34, Doc. No. 19.
on the § 2K2.1 enhancement, Dobbins faced a Guidelines
range of 92 to 115 months. PSR ¶ 60. On February 4,
2013, this Court sentenced Dobbins to 115 months in prison.
J., Doc. No. 22. Judgment was entered on February 14, 2013.
commenced this action on June 18, 2016, by filing a §
2255 Motion to Vacate. (Doc. No. 1.) He challenges the
enhancement of his sentence under U.S.S.G. §
2K2.1(a)(2). That provision applies to a defendant who
committed his offense “subsequent to sustaining at
least two felony convictions of either a crime of violence or
a controlled substance offense.” § 2K2.1(a)(2).
Dobbins contends that his prior convictions for AWDWISI and
indecent liberties are no longer “crimes of
violence” under the Guidelines in the light of the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015).
Government's request, and without opposition from
Dobbins, the Court stayed this action on December 27, 2016,
pending the United States Supreme Court's resolution of
Beckles v. United States. (Doc. No. 4.)
Beckles has been decided, 137 S.Ct. 886 (2017), and
the Government has filed a Motion to Dismiss this § 2255
action based on that decision (Doc. No. 5).
Dobbins's court-appointed counsel moved to withdraw from
representation (Doc. No. 8). The Court granted counsel's
amended motion to withdraw and issued an Order advising
Dobbins of his ability to withdraw his § 2255 Motion
without prejudice, or respond to the Government's Motion
to Dismiss by June 23, 2017. (Doc. No. 10). Dobbins has
neither moved to withdraw the § 2255 Motion to Vacate
nor responded to the Government's Motion to Dismiss.
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).
announced that the residual clause of the Armed Career
Criminal Act's (“ACCA”) definition of
“violent felony” is void for vagueness, and that
holding recognizes a retroactively applicable right. See
Welch v. United States, 136 S.Ct. 1257, 1265 (2016).
Johnson addresses only the ACCA's residual
clause, however, and “does not call into question
application of the Act to the four enumerated offenses, or to
the remainder of the Act's definition of a violent
felony.” Johnson, 135 S.Ct. at
does Johnson apply to the advisory Sentencing
Guidelines, because “the Guidelines are not amenable to
a vagueness challenge.” Beckles, 137 S.Ct. at
894. Because Johnson does not apply to the
Sentencing Guidelines, Dobbins's § 2255 Motion to
Vacate is time-barred and without merit. See 28
U.S.C. § 2255(f)(3); Beckles, 137 S.Ct. at 894;
United States v. Brown, 868 F.3d 297, 303 (4th Cir.
2017) (holding that Johnson did not recognize the
right the defendant asserted-to have his guidelines range
calculated without the sentencing guidelines' residual
clause-and therefore § 2255(f)(3) did not re-start his
time to file his motion to vacate).