United States District Court, E.D. North Carolina, Western Division
TERRERENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 [DE 38]. The government has moved to dismiss the
petition [DE 42], petitioner has responded, and the matter is
ripe for disposition. For the reasons discussed below, the
government's motion to dismiss is granted and
petitioner's motion is dismissed.
10, 2014, petitioner pleaded guilty, pursuant to a written
plea agreement, to counts two and three of his indictment:
possession with the intent to distribute a quantity of
cocaine, in violation of 21 U.S.C. § 841, and possessing
and brandishing a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A). Petitioner was sentenced on November 18, 2014
to a term of 24 months' imprisonment on count two and 84
months' imprisonment on count three, to run
consecutively. [DE 36]. Petitioner did not appeal his
sentence. On March 26, 2018, petitioner filed the instant
motion. Petitioner alleges that the Supreme Court's
ruling in Dean v. United States means that his
sentence as to count one may be reduced. See Dean v.
United States, 137 S.Ct. 1170 (2017). The government has
moved to dismiss petitioner's motion on the grounds that
it is untimely, that it is procedurally defaulted, that
Dean does not provide him any avenue for relief, and
that he waived his right to collaterally attack his sentence.
12(b)(6) motion to dismiss must be granted if the pleading
fails to allege enough facts to state a claim for relief that
is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also
Rule 12, Rules Governing Section 2255 Proceedings (Rules of
Civil Procedure apply to section 2255 proceedings).
Additionally, "vague and conclusory allegations
contained in a § 2255 petition may be disposed of
without further investigation by the District Court."
United States v. Dyess, 730 F.3d 354, 359 (4th Cir.
2013) (quoting United States v. Thomas, 221 F.3d
430, 437 (3rd Cir. 2000)). Petitioner's motion is denied
because his motion does not state a claim that is a plausible
ground for relief.
stands generally to reaffirm a sentencing court's
discretion in crafting a just and proportional sentence.
Dean v. United States, 137 S.Ct. 1170 (2017).
Specifically, it deals with the fact that a conviction under
§ 924(c) carries a mandatory minimum term, and that term
must be imposed consecutive to the sentence imposed for the
related, underlying offense. Id. at 1174. The Court
in Dean held that this mandatory consecutive
provision, and its effect on a defendant's entire
sentence, can be considered by the sentencing court when
sentencing on the other count or counts. Id. at
1176. If the § 924(c) mandatory minimums, which are
high-5 years for carrying a firearm, and 7 years if the
firearm was brandished-are enough, in the sentencing
court's view, to provide a just sentence, then the court
has the discretion to vary the sentence for the predicate
offenses. Id. at 1177. That sentence can be lowered
all the way down to one day, if needed. Id. As that
day would still be consecutive to the § 924(c) sentence,
the statutory sentencing requirements would be followed.
therefore, merited relief because the sentencing judge, as he
stated in open court, would have given him much lower
sentences on some of his charges than indicated by the
guidelines had he believed he had the discretion to do so.
Id. at 1175.
district courts in this circuit have held that Dean
does not apply retroactively to sentences attacked via §
2255. See, e.g., United States v. Dean, 2017 WL
6349834 at *2 (D. S.C. Dec. 13, 2017); United States v.
Adams, 2017 WL 2829704 at *2 (W.D. Va. June 29, 2017);
Morban-Lopez v. United States, 2017 WL 2682081 (W.D.
N.C. June 21, 2017). The Fourth Circuit has not spoken
squarely on the question, but it appears that § 2255
claims under Dean may, in some form, exist. See
United States v. Thompson, 714 Fed.Appx. 288 (4th Cir.
2018) (per curiam) (remanding for the district court to
specifically consider petitioner's claim under
Dean provides a new avenue for collateral attack,
petitioner here still has no opportunity for relief. When a
district court recognizes its power to fashion a just
sentence, Dean does not apply, because the problem
in Dean was the sentencing court's failure to
reckon with its own authority. Here, the Court clearly
recognized its authority at sentencing, as defendant was
sentenced below his advisory guideline range. Accordingly,
Dean does not apply, and petitioner's motion
under § 2255 is denied.
of the Rules Governing Section 2255 Cases provides that
"the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." 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). A
petitioner satisfies this standard by demonstrating that
reasonable jurists would find that an assessment of the
constitutional claims is debatable and any dispositive
procedural ruling dismissing such claims is also 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 (4th Cir. 2001). As
reasonable jurists would not find this Court's dismissal
of petitioner's § 2255 motion debatable, a
certificate of appealability is DENIED.
for the foregoing reasons, respondent's motion to dismiss
[DE 42] is GRANTED. Petitioner's motion to vacate
pursuant to 28 U.S.C. § 2255 [DE 38] is ...