United States District Court, E.D. North Carolina, Southern Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
December 27, 2016, Terrance Goodman ("Goodman")
moved pursuant to 28 U.S.C. § 2255 to vacate, set aside,
or correct his 125-month sentence [D.E. 51]. On March 3,
2017, the government moved to dismiss Goodman's motion
[D.E. 56] and filed a supporting memorandum [D.E. 57].
Goodman did not respond. As explained below, the court grants
the government's motion to dismiss.
March 18, 2013, Goodman pleaded guilty to conspiracy to
possess with intent to distribute and distributing a quantity
heroin (count one) and distribution of a quantity of heroin
and aiding and abetting (counts two, three, four, and five).
See [D.E. 20, 40]; Presentence Investigation Report
("PSR") [D.E. 22] ¶¶ 5-9.
21, 2013, the court held Goodman's sentencing hearing.
See [D.E. 26, 41]. At the hearing, the court calculated
Goodman's total offense level to be 21, his criminal
history category to be IV, and his advisory guideline range
to be 57 to 71 months' imprisonment. See Sent Tr. [D.E.
41] 6-68. The court then upwardly departed under U.S.S.G.
§ 4A1.3 to a total offense level of 24 and a criminal
history category of VI, yielding an advisory guideline range
of 100 to 125 months' imprisonment. See Id. at
69-72. After thoroughly considering all relevant factors
under 18 U.S.S.G. § 3553(a), the court sentenced Goodman
to 125 months' imprisonment on each count to run
concurrently. See id. at 73-79.
appealed. On April 11, 2014, the United States Court of
Appeals for the Fourth Circuit affirmed this court's
judgment. See United States v. Goodman. 566
Fed.Appx. 212, 213-15 (4th Cir. 2014) (per curiam)
Goodman's section 2255 motion, Goodman alleges that the
court incorrectly calculated his base offense IrvrI Hue tn
Johnson v. United States. 135S.Ct.2551 (2015).
See[D.E.52] 10-13. The government disagrees and has moved to
dismiss Goodman's motion for failure to state a claim
upon which relief can be granted. See [D.E. 56, 57].
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests the complaint's legal
and factual sufficiency. See Ashcroft v. Iqbal. 556
U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly.
550 U.S. 544, 562-63, 570 (2007); Coleman v. Md. Court of
Appeals. 626 F.3d 187, 190 (4th Cir. 2010),
affd. 566 U.S. 30 (2012); Giarratann v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord
Erickson v. Pardus. 551 U.S. 89, 93-94 (2007) (per
curiam). In considering a motion to dismiss, a court need not
accept a complaint's legal conclusions. See, e.g..
Iqbal. 556 U.S. at 678. Similarly, a court "need
not accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Giarratano 521 F.3d
at 302 (quotation omitted); see Iqbal. 556 U.S. at
677-79. Moreover, a court may take judicial notice of public
records without converting a motion to dismiss into a motion
for summary judgment. See, e.g.. Fed.R.Evid. 201;
Tellabs. Inc. v. Makor Issues & Rights. Ltd..
551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a
section 2255 motion, the court is not limited to the motion
itself. The court may consider "the files and records of
the case." 28 U.S.C. § 2255(b); see United
States v. McGill. 11 F.3d 223, 225 (1 st Cir. 1993).
Likewise, a court may rely on its own familiarity with the
case. See. e.g.. Blackledge v. Allison. 431
U.S. 63, 74 n.4 (1977); United States v. Dyess. 730
F.3d 354, 359-60 (4th Cir. 2013).
claim fails. First, Goodman's section 2255 motion is
untimely. See 28 U.S.C. § 2255(f); Johnson v. United
States. 544 U.S. 295, 199-300 (2005); Whiteside v.
United States. 775 F.3d 180, 182-83 (4th Cir. 2014) (en
banc). Goodman's judgment became final on July 11, 2014,
and Goodman's period within which to file a section 2255
motion ended on July 11, 2015. See 28 U.S.C. § 2255(f);
Clay v. United States. 537 U.S. 522, 532 (2003).
Goodman, however, did not file his section 2255 motion until
December 27, 2016. See [D.E. 51]. Accordingly, Goodman's
section 2255 motion is untimely. See Renteria-Chavez v.
United States. Nos. 4:14-CR-69-D, 4:17-CV-58-D, 2018 WL
2993535, at *2 (E.D. N.C. June 14, 2018) (unpublished).
a petitioner generally may not use section 2255 to challenge
the calculation of his advisory guideline range. See
United States v. Foote. 784 F.3d 931, 936-40 (4th
Cir. 2015); United States v. Pregent. 190 F.3d 279,
283-84 (4th Cir. 1999); see also Whiteside. 775 F.3d
at 183-87; United States v. Mikalajunas. 186 F.3d
490, 495-96 (4th Cir. 1999). Thus, Goodman's claim fails.
Johnson had nothing to do with Goodman's
advisory guideline range. See PSR ¶¶ 41-52;
Sentencing Tr. at 6-79. Thus, the claim fails.
reviewing the claim presented in Goodman's motion, the
court finds that reasonable jurists would not find the
court's treatment of Goodman's claim debatable or
wrong, and that the claim does not deserve encouragement to
proceed any further. Accordingly, the court denies a
certificate of appealability. See 28 U.S.C. § 2253(c);
Miller-El v. Cockrell. 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel. 529 U.S. 473, 484 (2000).
the court GRANTS the government's motion to dismiss [D.E.
56], DISMISSES Goodman's section 2255 motion [D.E. 51],