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Franklin v. United States

United States District Court, W.D. North Carolina

June 22, 2018




         THIS 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).

         I. BACKGROUND

         Petitioner 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).

         The 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 ¶¶ 23-24).

         The 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).

         The 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.

         On 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).

         On 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).


         “Habeas 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).

         Courts 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 (1999).

         Petitioner 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”).

         However, 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 ...

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