United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 [DE 31]. The government has moved to dismiss the
petition [DE 39] and the matter is ripe for disposition. For
the reasons discussed below, the government's motion to
dismiss is granted and petitioner's motion is dismissed.
September 28, 2015, petitioner pleaded guilty, pursuant to a
written plea agreement, to counts one and two of his
indictment: conspiracy to distribute and possession with the
intent to distribute 28 grams or more of cocaine base
(crack), in violation of 21 U.S.C. §§ 846 and
841(b)(1)(B), and possession of a firearm in furtherance of a
drug trafficking crime and aiding and abetting, in violation
of 18 U.S.C. §§ 924(c), 924(c)(1)(A)(i) and 2.
Petitioner was sentenced on April 26, 2016 to 94 months'
imprisonment on count one, and 60 months' imprisonment on
count two, to run consecutively. [DE 25]. Petitioner did not
appeal his sentence.
28, 2017, petitioner filed the instant motion. Petitioner
alleges that the Supreme Court's ruling in Dean v.
United States means that his sentence as to count one
may be reduced. See Dean v. United States, 137 S.Ct.
1170 (2017). The government has moved to dismiss
petitioner's motion on the grounds that petitioner waived
his right to collaterally attack his sentence, and that
Dean does not provide him any avenue for relief.
12(b)(6) motion to dismiss must be granted if the pleading
fails to allege enough facts to state a claim for relief that
is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also
Rule 12, Rules Governing Section 2255 Proceedings (Rules of
Civil Procedure apply to section 2255 proceedings).
Additionally, "vague and conclusory allegations
contained in a § 2255 petition may be disposed of
without further investigation by the District Court."
United States v. Dyess, 730 F.3d 354, 359 (4th Cir.
2013) (quoting United States v. Thomas, 221 F.3d
430, 437 (3rd Cir. 2000)). Petitioner's motion is denied
because his motion does not state a claim that is a plausible
ground for relief.
stands generally to reaffirm a sentencing court's
discretion in crafting a just and proportional sentence.
Dean v. United States, 137 S.Ct. 1170 (2017).
Specifically, it deals with the fact that a conviction under
§ 924(c) carries a mandatory minimum term, and that term
must be imposed consecutive to the sentence imposed for the
related, underlying offense. Id. at 1174. The Court
in Dean held that this mandatory consecutive
provision, and its effect on a defendant's entire
sentence, can be considered by the sentencing court when
sentencing on the other count or counts. Id. at
1176. If the § 924(c) mandatory minimums, which are
high-5 years for the first count, and an additional 25 for
the second-are enough, in the sentencing court's view, to
provide a just sentence, then the court has the discretion to
vary the sentence for the predicate offenses. Id. at
1177. That sentence can be lowered all the way down to one
day, if needed. Id. As that day would still be
consecutive to the § 924(c) sentence, the statutory
sentencing requirements would be followed. Id.
therefore, merited relief because the sentencing judge, as he
stated in open court, would have given him much lower
sentences on some of his charges than indicated by the
guidelines had he believed he had the discretion to do so.
Id. at 1175.
district courts in this circuit have held that Dean
does not apply retroactively to sentences attacked via §
2255. See, e.g., United States v. Dean, 2017 WL
6349834 at *2 (D. S.C. Dec. 13, 2017); United States v.
Adams, 2017 WL 2829704 at *2 (W.D. Va. June 29, 2017);
Morban-Lopez v. United States, 2017 WL 2682081 (W.D.
N.C. June 21, 2017). The Fourth Circuit has not spoken
squarely on the question, but it appears that § 2255
claims under Dean may, in some form, exist. See
United States v. Thompson, 714 Fed.Appx. 288 (4th Cir.
2018) (per curiam) (remanding for the district court to
specifically consider petitioner's claim under
Dean provides a new avenue for collateral attack,
petitioner here still has no opportunity for relief. When a
district court recognizes its power to fashion a just
sentence, Dean does not apply, because the problem
in Dean was the sentencing court's failure to
reckon with its own authority. Here, the Court recognized its
authority at sentencing, including when it granted
defendant's objection regarding drug weight and lowered
defendant's guideline range. Accordingly, Dean
does not apply, and petitioner's motion under § 2255
of the Rules Governing Section 2255 Cases provides that
"the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." A certificate of appealability shall not
issue absent "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A
petitioner satisfies this standard by demonstrating that
reasonable jurists would find that an assessment of the
constitutional claims is debatable and any dispositive
procedural ruling dismissing such claims is also debatable.
Miller-El v. Cockrell,537 U.S. 322,
336-38 (2003); Slack v. McDaniel,529 U.S. 473, 484
(2000); Rose v. Lee,252 F.3d 676, 683 (4th ...