United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MATTER is before the Court on Petitioner's
“Motion to Vacate Sentence under Sessions v.
Dimaya, No. 15-1498 under 28 U.S.C. § 2241”
[Doc. 1] and Petitioner's “Motion for Appointment
of Counsel” [Doc. 2].
pled guilty to one count of possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g)(1). [Criminal
No. 1:14-cr-80 (“CR”), Doc. 18: Acceptance and
Entry of a Guilty Plea]. The Presentence Investigation Report
(“PSR”) calculated an enhanced base offense level
of 24 pursuant to U.S. Sentencing Guidelines §
2K2.1(a)(2), based on the fact that Petitioner committed the
§ 922(g) offense after sustaining two felony convictions
for crimes of violence, i.e., North Carolina common
law robbery and North Carolina breaking or entering. [CR Doc.
25 at ¶¶ 11, 34, 36: PSR].
to Petitioner's sentencing, the United States Supreme
Court decided Johnson v. United States, 135 S.Ct.
2551 (2015), in which the Court held that the Armed Career
Criminal Act's (“ACCA”) residual clause is
unconstitutionally vague. At sentencing, Petitioner argued
that his North Carolina common law robbery conviction does
not qualify as a § 2K2.1 predicate offense under
Johnson. The Court rejected Petitioner's
argument and sentenced him within the advisory Guidelines
range. [CR Doc. 37 at 12, 19, 32: Sentencing Transcript]. The
Fourth Circuit Court of Appeals affirmed the conviction and
sentence in an unpublished opinion on April 25, 2016.
United States v. Young, 639 Fed.Appx. 185 (4th Cir.
filed a pro se § 2255 Motion to Vacate raising
a Johnson claim in September 2016. [Civil No.
1:16-cv-00303-MR, Doc. 1]. The Court held Petitioner's
motion in abeyance pending the Supreme Court's decision
in Beckles v. United States, 137 S.Ct. 886 (2017).
Once the Supreme Court decided Beckles, holding that
the Guidelines are subject to vagueness challenges, this
Court denied Petitioner's § 2255 motion. Young
v. United States, 2017 WL 3496455 (W.D. N.C. Aug. 15,
then filed the instant pro se motion. In his motion,
Petitioner argues that in light of Sessions v.
Dimaya, 138 S.Ct. 1204 (2018), his prior North Carolina
conviction for breaking or entering is not a “crime of
violence, ” and that therefore he should be resentenced
without the § 2K2.1 enhancement.
§ 2241 Motion
Petitioner's motion cites § 2241 as the basis for
relief, the motion attacks the legality of the sentence and
is, therefore, in the nature of a § 2255 Motion to
Vacate. Pursuant to 28 U.S.C. § 2255, a prisoner in
federal custody may move the court which imposed his sentence
to vacate, set aside, or correct the sentence if it was
imposed in violation of federal constitutional or statutory
law, was imposed without proper jurisdiction, is in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a). However,
“[a] second or successive motion must be certified...by
a panel of the appropriate court of appeals to contain”
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). “The court of appeals may
authorize the filing of a second or successive application
only if it determines that the application makes a prima
facie showing that the application satisfies the requirements
of this subsection.” 28 U.S.C. § 2244(b)(3)(C). In
the absence of pre-filing authorization, a district court
lacks jurisdiction to consider a successive application.
United States v. Winestock, 340 F.3d 200, 205 (4th
to the so-called “savings clause, ” a petition
attacking a federally-imposed sentence may be filed under 28
U.S.C. § 2241 instead of § 2255 where the
petitioner establishes that the remedy provided under §
2255 is “inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e). Section
2255 is deemed inadequate or ineffective to test the legality
of a sentence when: (1) at the time of sentencing, settled
law of this circuit or the Supreme Court established the
legality of the sentence; (2) subsequent to the
prisoner's direct appeal and first § 2255 motion,
the aforementioned settled substantive law changed and was
deemed to apply retroactively on collateral review; (3) the
prisoner is unable to meet the gatekeeping provisions of
§ 2255(h)(2) for second or successive motions; and (4)
due to this retroactive change, the sentence now presents an
error sufficiently grave to be deemed a fundamental defect.
United States v. Wheeler, 886 F.3d 415, 429 (4th
Cir. 2018), r'hng denied, June 11, 2018. Section
2255 is not considered “inadequate or
ineffective” merely because an ...