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Green v. United States

United States District Court, E.D. North Carolina, Eastern Division

July 10, 2018

ERNEST RAY GREEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Malcolm J. Howard, Senior United States District Judge

         This 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].[1] 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 adjudication.

         BACKGROUND

         On 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.[2] [DE #53] .

         COURT'S DISCUSSION

         In the 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.

         Thus, 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.

         Further, 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.[3]Therefore, petitioner's claim fails.

         CONCLUSION

         For the 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.

         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) (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.

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Notes:

[1] The court notes plaintiff argues for relief on the same basis upon which counsel filed a notice of appearance, Johnson v. United States, 235 ...


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