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 seeks relief
from his career offender sentence pursuant to Johnson v.
United States, 135 S.Ct. 2551 (2015). Also pending are
the Respondent's Motion to Place Motion Under 28 U.S.C.
§ 2255 in Abeyance, (Doc. No. 4), and the Motion to
Withdraw as Counsel, (Doc. No. 5), filed by Petitioner's
pled guilty to a single count of conspiracy to possess with
intent to distribute, and distribution of MDMA. (3:05-cr-252,
Doc. No. 99). The Presentence Investigation Report
(“PSR”) scored the base offense level as 32 based
on the drug quantity and the offense level for career
offenders is also 32. (3:05-cr-252, Doc. No. 166 at
¶¶ 20, 25-26). Three levels were deducted for
acceptance of responsibility, resulting in a total offense
level of 29. (3:05-cr-252, Doc. No. 166 at ¶ 28).
Petitioner had 15 criminal history points and two points were
added because the offense was committed less than two years
from Petitioner's release from custody. (3:05-cr-252,
Doc. No. 166 at ¶¶ 42-43). Seventeen criminal
history points result in a criminal history category of VI
and the criminal history category for career offenders is
also VI. (3:05-cr-252, Doc. No. 166 at ¶ 44). The
resulting guideline sentencing range was 151 to 188
months' imprisonment. (3:05-cr-252, Doc. No. 166 at
¶ 76). The Court imposed 175 months' imprisonment
followed by three years' supervised release.
(3:05-cr-252, Doc. No. 136).
filed a § 2255 Motion to Vacate that was docketed in
civil Case Number 3:09-cv-533. The Court dismissed the
petition with prejudice as time-barred. Riddle v. United
States, 2012 WL 80789 (W.D. N.C. Jan. 11, 2012). The
Fourth Circuit dismissed Petitioner's appeal. United
States v. Riddle, 473 Fed.Appx. 296 (4th Cir. 2012).
Fourth Circuit granted Petitioner leave to file this second
§ 2255 Motion to Vacate, which Petitioner filed through
counsel on June 23, 2016. (Doc. Nos. 1, 2). The Court ordered
the Government to respond but, instead, it filed an unopposed
Motion seeking to stay these proceedings pending the outcome
of Beckles v. United States. (Doc. No. 4). On March
6, 2017, the Supreme Court held that the advisory guidelines
are not subject to vagueness challenges. Beckles v.
United States, 137 S.Ct. 886 (2017). On May 11, 2017,
counsel for Petitioner moved to withdraw from this
representation based on Beckles. (Doc. No. 5).
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).
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.
claims his prior North Carolina conviction for breaking and
entering, in violation of N.C. Gen. Stat. § 14-54, is no
longer a qualifying predicate under the career offender
guideline's residual clause after Johnson. (Doc.
No. 1 at 3-4). Johnson announced that the Armed
Career Criminal Act's (“ACCA”) residual
clause is void for vagueness, and that holding
recognizes a retroactively applicable right. See Welch v.
United States, 136 S.Ct. 1257, 1265 (2016). However, the
Supreme Court subsequently decided that Johnson does
not apply to the advisory sentencing guidelines because
“the Guidelines are not amenable to a vagueness
challenge.” Beckles v. United States, 137
S.Ct. 886, 894 (2017).
Johnson does not apply to the Sentencing Guidelines,
Petitioner's § 2255 Motion to Vacate is time-barred
and meritless. See Beckles, 137 S.Ct. at 894; 28
U.S.C. § 2255(f)(3); 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). The instant § 2255 Motion to
Vacate is therefore dismissed with prejudice as time-barred
and, alternatively, denied on the merits.