United States District Court, W.D. North Carolina
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1), in which he raises a claim
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015). For the reasons stated below, the Court will grant
the Government's Motion to Dismiss, (Doc. No. 3).
pled guilty to possessing of a firearm as a convicted felon,
in violation of 18 U.S.C. § 922(g). (3:06-cr-7, Doc. No.
1: Indictment; Doc. No. 20: Plea Agreement). The written plea
agreement acknowledged that the Court could sentence
Petitioner up to the statutory maximum ten years'
imprisonment for violating 18 U.S.C. § 922(g), and up to
life imprisonment if he qualified as an armed career
criminal. (Id., Doc. No. 20 at 1). The parties
stipulated that “Defendant is an Armed Career Criminal
under 18 U.S.C. § 924(e) [and] Defendant will receive a
15-year active sentence of imprisonment.” (Id.
at 2). Petitioner waived all appellate and post-conviction
review rights except for claims of ineffective assistance of
counsel and prosecutorial misconduct, and sentencing
challenges based on guideline findings inconsistent with the
parties' stipulations, or based on unanticipated issues
arising during the sentencing hearing that the Court
certified to be of such an unusual nature as to require
Fourth Circuit review. (Id. at 4).
Presentence Investigation Report (“PSR”)
calculated the base offense level as 24 for a violation of 18
U.S.C. § 922(g)(1). (3:06-cr-7, Doc. No. 45 at ¶
16). However, the offense level as an armed career criminal
was 33. (Id. at ¶ 22). Three levels were
deducted for acceptance of responsibility, resulting in a
total offense level of 30. (Id. at ¶¶
PSR's criminal history section included convictions for
North Carolina possession with intent to sell or deliver
cocaine, (id. at ¶ 30); North Carolina robbery
with a dangerous weapon, (id. at ¶ 31); and
possession of a firearm in relation to a crime of violence,
i.e., assault with a dangerous weapon in aid of
racketeering activity in violation of 18 U.S.C. 1959(a)(3),
Case Number 3:94-cr-29, (id. at ¶ 32).
Petitioner had six criminal history points and a criminal
history category of III; however, the criminal history
category as an armed career criminal is IV. (Id. at
¶ 34). Petitioner's guideline imprisonment range was
calculated as 135 to 168 months, which was raised to the
statutory minimum of 180 months under § 924(e).
(Id. at ¶¶ 51-52).
Court accepted Petitioner's guilty plea and, on February
20, 2007, sentenced him to 180 months' imprisonment
followed by three years' supervised release. (3:06-cr-7,
Doc. No. 24: Judgment). Petitioner did not appeal.
January 31, 2008, Petitioner filed a pro se §
2255 motion that was opened as a new civil case, number
3:08-cv-51. The Court denied relief on March 13, 2012,
(3:08-cv-51, Doc. No. 25: Order), and the Fourth Circuit
dismissed Petitioner's appeal on August 2, 2012,
(id., Doc. No. 29).
April 22, 2016, the Fourth Circuit granted Petitioner leave
to file a second or successive § 2255 motion.
(3:06-cr-7, Doc. No. 46). Petitioner filed the instant §
2255 Motion to Vacate through counsel on April 23, 2016,
arguing that his sentence exceeds the statutory maximum
because his 1994 federal conviction for possession of a
weapon in relation to a crime of violence does not qualify as
a “violent felony” under Johnson v. United
States, 135 S.Ct. 2551 (2015). (Doc. No. 1). The
Government filed a Motion to Dismiss arguing that the Motion
to Vacate is barred by Petitioner's collateral relief
plea waiver and it is procedurally defaulted and meritless.
(Doc. No. 3). In a Reply, defense counsel argues that a
sentence that exceeds the statutory maximum cannot be waived
by a plea agreement's collateral relief waiver, it is not
procedurally defaulted because the claim is novel, and the
Johnson claim is meritorious. (Doc. No. 4).
review is an extraordinary remedy and will not be allowed to
do service for an appeal.” Bousley v. United
States, 523 U.S. 614, 621 (1998) (internal citations
omitted); United States v. Sanders, 247 F.3d 139,
144 (4th Cir. 2001). As a general matter, a petitioner cannot
raise an argument in a post-conviction proceeding that he did
not raise earlier on direct appeal. See,
e.g., Sanchez-Llamas v. Oregon, 548 U.S.
331, 351 (2006) (citing Massaro v. United States,
538 U.S. 500, 504 (2003); Bousley, 523 U.S. at 621).
may excuse procedural default where a defendant is able to
demonstrate “cause” and actual “prejudice,
” or actual innocence. Bousley, 523 U.S. at
622 (citing Murray v. Carrier, 477 U.S. 478, 485
(1986); Wainwright v. Sykes, 433 U.S. 72, 87
(1977)); see United States v. Frady, 456 U.S. 152,
167-68 (1982); United States v. Mikalajunas, 186
F.3d 490, 492-93 (4th Cir. 1999); United States v.
Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994).
“Cause” to excuse a procedural default requires
“some objective factor external to the defense [that]
impeded counsel's efforts to comply” with the
procedural requirements to raise a claim. Murray,
477 U.S. at 488; Mikalajunas, 186 F.3d at 490. For
instance, “cause” is established “where a
constitutional claim is so novel that its legal basis is not
reasonably available to counsel.” Reed v.
Ross, 468 U.S. 1, 16 (1984). Actual prejudice is then
shown by demonstrating that the error worked to
petitioner's “actual and substantial disadvantage,
” rather than just creating a possibility of prejudice.
See Satcher v. Pruett, 126 F.3d 561, 572
(4th Cir. 1997) (quoting Murray, 477 U.S.
at 494); Strickler v. Green, 527 U.S. 263, 289
concedes that he did not raise his Johnson claim on
direct appeal, however, he argues that the claim is not
procedurally defaulted from collateral review because he can
demonstrate cause and prejudice. As to cause, Petitioner
correctly argues that Johnson's holding is so
novel that it was not reasonably available to appellate
counsel on direct appeal, and therefore, he has established
“cause” to excuse his procedural default of this
claim. See Casper v. United States, 2016 WL 3583814
(W.D. N.C. July 1, 2016); see also; United
States v. Snyder, 2017 WL 4171886 (10th Cir. Sept. 21,
2017) (concluding that a Johnson claim was not
reasonably available to the § 2255 petitioner at the
time of his direct appeal, which is sufficient to establish
cause); United States v. Redrick, 841 F.3d 478, 480
(D.C. Cir. 2016) (“it is fair to say that no one - the
government, the judge, or the [defendant] - could reasonably
have anticipated Johnson”).
Petitioner cannot establish prejudice to excuse his
procedural default because he does not allege actual
innocence and the Johnson claim is meritless for the
reasons set forth below. Therefore, his procedural default of
this claim is not ...