United States District Court, E.D. North Carolina, Eastern Division
Malcolm J. Howard, Senior United States District Judge
matter is before the court on petitioner's motion to
vacate his sentence under 28 U.S.C. § 2255. [DE #48 and
#53]. The government responded by filing a motion to dismiss
[DE #56 and #61] . Petitioner has not responded, and the time
for further filing has expired. Petitioner has also filed a
motion to appoint counsel, [ DE #49], which motion is DENIED
AS MOOT, in light of the Limited Notice of Appearance filed
by the Federal Public Defender's ("FPD") Office
under Standing Order 15-SO-02, [DE #55]. The court notes
the FPD Office filed a motion to withdraw on the basis that
no motions would be presented under Johnson v. United
States, 235 S.Ct. 2551 (2015), [DE #60], and this motion
was granted by this court. [DE #62]. This matter is ripe for
December 10, 1997, petitioner pled guilty, pursuant to a
written memorandum of plea agreement, to armed bank robbery,
in violation of 18 U.S.C. §§ 2113(a) and (d) and 2
(Count One) and using and carrying a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1) (Count Two). [DE #25] . On March 30, 1998,
the court sentenced petitioner to a total term of
imprisonment of 248 months and a supervised release term of 5
years. [DE #22] . Petitioner did not appeal. On or about
January 22, 2016, petitioner filed the instant motion under
28 U.S.C. § 2255, [DE #48], and was directed to file
again using the appropriate form. [DE #52]. On February 23,
2016, petitioner filed on the correct form, and moved to
vacate in light of Johnson, arguing that the court
imposed a sentence in excess of the statutory and guidelines
maximum and "in violation of due process" as he
contends he was incorrectly sentenced as a career offender
under the United States Sentencing Guidelines
("USSG") §§ 4B1.1 and
4B1.2. [DE #53] .
Johnson decision, the Supreme Court of the United
States invalidated the residual clause found in 18 U.S.C.
§ 924(e)(2)(B)(ii) ("Armed Career Criminal
Act" or "ACCA"). Johnson, 235 S.Ct.
at 2557. In Welch v. United States, 136 S.Ct. 1257,
1265 (2016), the Supreme Court held the rule pronounced in
Johnson is retroactively applicable on collateral
review. Petitioner filed his motion within one year of
Johnson. In Beckles v. United States, 137
S.Ct. 886 (2017), the Supreme Court declined to extend its
ruling in Johnson to the residual clause of USSG
§ 4B1.2(a). Petitioner cannot rely on Johnson
or its progeny here as he was sentenced as a career offender
under USSG § 4B1.1, and not under the ACCA.
petitioner's argument that his § 2255 motion is
timely under 28 U.S.C. § 2255(f) (3) is without merit,
and the timeliness of petitioner's motion is governed by
28 U.S.C. § 2255(f)(1). Petitioner's judgment was
entered on April 13, 1998. Petitioner did not file an appeal,
and therefore his judgment became final on "the date
upon which [petitioner] declined to pursue further direct
appellate review." United States v. Sanders,
247 F.3d 139, 142 (4th Cir. 2001). The court notes
petitioner's § 2255 motion was not filed until
January 22, 2016, well more than one year after the judgment
became final. Thus, petitioner's motion to vacate is
untimely and is therefore DISMISSED.
the court notes that due to the qualification of the
predicate offenses as violent felonies under the force clause
of the ACCA under Fourth Circuit caselaw, the Supreme
Court's resolution of United States v. Brown,
868 F.3d 297, 298 (4th Cir. 2017), reh'g en
banc denied, 891 F.3d 115 (4 th Cir. 2018),
petition for cert, filed, (U.S. May 29, 2018) (No.
17-9276), will not affect the classification of the predicate
offenses of the instant case.Therefore, petitioner's claim
foregoing reasons, the government's motion to dismiss,
[DE #56], is GRANTED. Petitioner's motions, [DE #48,
s #49, and #53], are DISMISSED. The
clerk is directed to close this case.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2) (2000). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise 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, 683-84 (4th Cir. 2001). A
reasonable jurist would not find this court's dismissal
of Petitioner's § 2255 Motion debatable. Therefore,
a Certificate of Appealability is DENIED.
 The court notes plaintiff argues for
relief on the same basis upon which counsel filed a notice of
appearance, Johnson v. United States, 235 ...