United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDEG.
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.
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.
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.
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.
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.
Standard of Review
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.
Ineffective Assistance of Counsel
first claim, petitioner alleges that counsel was ineffective
in failing to file an appeal after being instructed to do so
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