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Tillery v. United States

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

April 3, 2019

MICHAEL ERIC TILLERY, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDEG.

         This matter is before the court on petitioner's motions to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, (DE 68, 79), and the government's motion to dismiss (DE 81). Petitioner responded in opposition to the motion to dismiss, and in this posture the issues raised are ripe for ruling. For the reasons that follow, the court grants in part and denies in part the motion to dismiss and refers petitioner's ineffective assistance of counsel claim for evidentiary hearing.

         BACKGROUND

         Petitioner pleaded guilty on March 15, 2017, pursuant to a written plea agreement, to possession of one or more firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The court sentenced petitioner, on January 29, 2018, to a term of imprisonment of 82 months. Petitioner did not appeal.

         Petitioner filed his first instant motion to vacate on April 6, 2018, asserting that his guidelines sentencing range was improperly calculated in light of the recent decision by the United States Court of Appeals for the Fourth Circuit in United States v. McCollum, 885 F.3d 300, 303 (4th Cir. 2018). Upon the government's first motion to dismiss this claim as a matter of law, petitioner responded by asserting an additional claim based upon ineffective assistance of counsel on appeal. On June 19, 2018, the court denied the government's first motion to dismiss and directed petitioner to file an amended § 2255 motion on the correct form including his newly-asserted ineffective assistance of counsel claim.

         Petitioner filed the instant amended § 2255 motion on July 10, 2018, asserting as his first claim that counsel was ineffective in failing to file an appeal after being instructed to do so by petitioner. As his second claim, petitioner contends that the offense of North Carolina conspiracy to commit robbery, which was used as a predicate offense in calculating his guidelines sentencing range, is not a qualifying crime of violence.

         The government filed the instant motion to dismiss on August 15, 2018, arguing that petitioner's claims must be dismissed as a matter of law. Petitioner responded reiterating the basis for his claims.

         COURT'S DISCUSSION

         A. Standard of Review

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). “The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions, or the [§ 2255 Rules], may be applied to” § 2255 proceedings. Rules Governing Section 2255 Proceedings, Rule 12.

         B. Analysis

         1. Ineffective Assistance of Counsel

         In his first claim, petitioner alleges that counsel was ineffective in failing to file an appeal after being instructed to do so by petitioner.

         Analysis of an ineffective assistance of counsel claim requires application of the two-part test established by Strickland v. Washington, 466 U.S. 668, 690-94 (1984). First, the petitioner must show that his counsel's performance was deficient in that it fell below the standard of reasonably effective assistance. Id. at 687-691. Second, the petitioner must show that there is a reasonable ...


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