United States District Court, E.D. North Carolina, Western Division
Malcolm J. Howard Senior United States District Judge
matter is before the court on the government's motion to
dismiss, [ DE #38], in response to petitioner's motion to
vacate under 28 U.S.C. § 2255, [DE #31]. Petitioner has
filed a response, [DE #41 and #44], as well as two motions to
supplement pending § 2255 motion, [ DE #47 and #49], and
a motion for release from custody pending outcome of §
2255, [ DE #48]. This matter is ripe for adjudication.
September 10, 2012, petitioner pled guilty, pursuant to a
written plea agreement, to two counts of felon in possession
of a firearm and ammunition in violation of 18 U.S.C.
§§ 922(g) (1) and 924 (Counts One and Two). On
December 12, 2012, petitioner was sentenced to a total term
of imprisonment of 96 months. Petitioner did not appeal.
April 16, 2015, petitioner filed a motion for appropriate
relief which the court has construed in part as a motion to
vacate under 28 U.SC. § 2255. On December 3, 2015,
petitioner filed the instant motion to vacate under 28 U.S.C.
§ 2255 alleging: (1) under Johnson v. United
States, 135 S.Ct. 2551, 2584 (2015), his prior
convictions no longer qualify as crimes of violence under
United States Sentencing Guidelines ("USSG") §
4B1.2 and his base offense level should be corrected and (2)
his criminal history score was incorrectly calculated. The
government has moved to dismiss petitioner's motion to
vacate under 28 U.S.C. § 2255.
Motions to Supplement Pending § 2255, [DE #47 and
good cause shown, petitioner's motions to supplement
pending § 2255, [DE #47 and #49], are GRANTED, to the
extent he moves to supplement the § 2255. The court has
considered those supplements herein.
Motion to Vacate Under 28 U.S.C. § 2255, [DE
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. However, 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 not sentenced
under ACCA, but rather was sentenced pursuant to §
2K2.1(a) (3) as the offense was determined to involve a
firearm under 26 U.S.C. § 5845(a) and the defendant
committed a felony conviction for a crime of violence under
USSG § 4B1.2 prior to his offenses of conviction.
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 December 20, 2012. 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
April 26, 2015, well more than one year after the judgment
became final. Thus, petitioner's motion to vacate is
untimely and is therefore DISMISSED.
Motion for Appropriate Relief, [DE #30]
lack of good cause shown, petitioner's motion for
appropriate relief, [DE #30], is DENIED.
Motion for Release On "or" Bond Pending the Outcome
of the § ...