United States District Court, E.D. North Carolina, Western Division
MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner's successive
motion to vacate under 28 U.S.C. § 2255, [DE #256]. The
government filed a motion to stay, [DE #264], and the court
granted the motion, staying the matter pending the Supreme
Court's resolution of United States v. Beckles,
137 S.Ct. 886 (2017). [DE #265].* The court entered a
briefing order following the Supreme Court's decision in
Beckles. [DE #271] . Petitioner filed a motion for
leave to file a supplemental brief, [DE #273], which was
granted by this court, [DE #274], and the supplement will be
considered herein. The government filed a response to the
court's briefing order, construed by the court as a
motion to dismiss, [DE #275], The Office of the Federal
Public Defender filed a notice of appearance for the limited
purpose of representation in light of Johnson v. United
States, 135 S.Ct. 2551 (2015), as set forth in Standing
Order 15-SO-02, [DE #267], and subsequently filed a motion to
withdraw as counsel on the basis that no motions would be
filed in light of Beckles. [DE #269]. This motion
was granted by the court. [DE #270]. Petitioner moved in
opposition to the government's response, [DE #276],
moving the court to stay the matter, which stay was granted,
pending the resolution of United States v. Brown,
868 F.3d 297, 298 (4th Cir. 2017), reh'g en
banc denied, 891 F.3d 115 (4th Cir. 2018), cert,
denied, 139 S.Ct. 14 (2018). [DE #277]. The stay was
lifted by court order on December 18, 2018. [DE #278].
Petitioner was allowed 45 days to respond to the
government's motion to dismiss, [DE #275]. [DE #278].
August 24, 1999, pursuant to a signed Memorandum of Plea
Agreement, petitioner pled guilty to conspiracy to distribute
and possess with intent to distribute cocaine base (crack),
and other controlled substances, in violation of 21 U.S.C.
§ 846 (Count One) and using or carrying a firearm during
and in relation to a drug trafficking crime, and aiding and
abetting, in violation of 18 U.S.C. §§ 924 (c)(1)
and (2) (Count Two). [DE #66]. Petitioner filed a motion to
withdraw his guilty plea, [DE #63], to which the government
responded, [DE #65]. This court denied the motion to withdraw
at a hearing on January 11, 2000. He was sentenced by this
court to a term of imprisonment of 460 months on January 12,
2000. [DE #66].
appealed to the Fourth Circuit where both his conviction and
sentence were affirmed. See United States v.
General, No. 00-4091, 40 Fed.Appx. 859, 2002 WL 1611236
(4th Cir. July 23, 2002) (unpublished), cert,
denied, 537 U.S. 1061 (Dec. 2, 2002). [DE #104 and
#105]. On December 1, 2003, petitioner filed his first motion
to vacate pursuant to 28 U.S.C. § 2255, which was
denied. [DE #126]. Petitioner appealed the denial and the
Fourth Circuit dismissed the appeal. [DE #132], On February
10, 2016, petitioner's sentence was reduced to 324 months
by this court's order pursuant to 18 U.S.C. §
3582(c)(2). [DE #253].
13, 2016, petitioner filed this instant successive motion to
vacate pursuant to 28 U.S.C. § 2255, [DE #256], arguing
he was no longer a career offender under United States
Sentencing Guidelines ("USSG") § 4B1.2 as the
residual clause in Armed Career Criminal Act was invalidated
pursuant to Johnson v. United States, 235 S.Ct. 2551
(2015). The Fourth Circuit granted permission for
petitioner's successive § 2255 motion. [DE #266].
Johnson decision, the Supreme Court of the United
States invalidated the residual clause found in 18 U.S.C.
§ 924(e)(2)(B)(ii) ("Armed Career Criminal
Act" or "ACCA"). Johnson, 135 S.Ct.
at 2557. In Welch v. United States, 136 S.Ct. 1257,
1265 (2016), the Supreme Court held the rule pronounced in
Johnson is retroactively applicable on collateral
review. Petitioner filed his motion within one year of
Johnson. However, in Beckles v. United
States, 137 S.Ct. 886 (2017), the Supreme Court declined
to extend its ruling in Johnson to the residual
clause of USSG § 4B1.2(a). After Johnson and
Beckles, the Fourth Circuit addressed a
petitioner's argument who was sentenced under
then-mandatory sentencing guidelines. Brown, 868
F.3d at 302-03. The petitioner in Brown argued that
the residual clause of USSG § 4B1.2 was invalidated
pursuant to Johnson, because the mandatory
sentencing guidelines carried the weight of a statute and
thus should be rendered void for vagueness. Id. The
Fourth Circuit rejected this argument noting that
Johnson did not extend to invalidate the residual
clause of the mandatory guidelines. Id.
matter, petitioner was not sentenced under the ACCA, so
Johnson and Welch do not afford relief to
petitioner. While petitioner was sentenced as a career
offender pursuant to USSG § 4B1.2, Beckles does
not provide relief to petitioner because the Supreme Court
declined to extend Johnson to invalidate the
residual clause of § 4B1.2. Thus, petitioner's
argument that his § 2255 motion is timely under 28
U.S.C. § 2255(f) (3) is without merit, and the
timeliness of petitioner's motion is governed by 28
U.S.C. § 2255(f)(1).
judgment became final on December 2, 2002, the date his
petition for certiorari was denied by the United States
Supreme Court. See Clay v. United States, 537 U.S.
522, 527 (2003) ("Finality attaches when this Court
affirms a conviction on the merits on direct review or denies
a petition for a writ of certiorari, or when the time for
filing a certiorari petition expires." (internal
citations omitted)). The court notes petitioner's instant
§ 2255 motion was not filed until May 13, 2016, well
more than a year after petitioner's judgment became
final. Therefore, petitioner's motion is untimely and
must be dismissed.
foregoing reasons, the government's motion to dismiss,
[DE #275], is GRANTED. Petitioner's motion, [DE #256], is
DISMISSED. The clerk is directed to close this case.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2) (2000). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack, 529 U.S. at 484 (2000); Rose v. Lee,
252 F.3d 676, 683-84 (4th Cir. 2001) . A reasonable jurist