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Young v. United States

United States District Court, W.D. North Carolina, Asheville Division

July 23, 2018




         THIS 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].

         I. BACKGROUND

         Petitioner 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].

         Prior 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 The Fourth Circuit Court of Appeals affirmed the conviction and sentence in an unpublished opinion on April 25, 2016.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. 2016).

         Petitioner 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, 2017).

         Petitioner 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.[1]


         A. § 2241 Motion

         Although 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 a panel of the appropriate court of appeals to contain” either:

(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; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

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 Cir. 2003).

         Pursuant 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 ...

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