United States District Court, E.D. North Carolina, Eastern Division
Malcolm J. Howard Senior United States District Judge
matter is before the court on petitioner's motion to
vacate under 28 U.S.C. § 2255, [DE #160]. This matter was
stayed pending United States v. Beckles, 137 S.Ct.
886 (2017), and subsequent to the resolution of
Beckles, the government filed a motion to dismiss,
[DE #180]. The court entered an order lifting the
stay and allowing petitioner 45 days from the lift of the
stay for petitioner to respond. [DE #194]. Petitioner has not
responded. The time for further filing has expired, and this
matter is ripe for adjudication.
April 5, 2012, petitioner pled guilty pursuant to a written
memorandum of plea agreement to conspiracy to distribute 280
grams or more of cocaine base (crack) and 500 grams or more
of cocaine, in violation of 21 U.S.C. § 846 (Count One);
discharge of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (Count Eight).
[DE #114]. On October 16, 2012, the court sentenced
petitioner to a total term of imprisonment of 240 months,
following the granting of the government's motion for a
reduction in sentence pursuant to United States Sentencing
Guidelines ("USSG") § 5K1.1. [DE #114].
Judgment was entered on October 23, 2012. Petitioner filed a
notice of appeal, and the Fourth Circuit Court of Appeals
affirmed his convictions and dismissed the appeal of his
sentence. [DE #117 and DE #134]. The Fourth Circuit entered
judgment on May 30, 2013.
16, 2016, petitioner filed the instant motion to vacate under
28 U.S.C. § 2255, in light of Johnson v. United
States, 235 S.Ct. 2551 (2015), reguesting the court to
"set-aside the sentence imposed on him for the counts
under 18 U.S.C. § 924(c), and to order a re-sentencing
hearing." [ DE #160].
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
filed his motion within one year of Johnson. In
Beckles v. United States, 137 S.Ct. 886 (2017),
however, the Supreme Court declined to extend its ruling in
Johnson to the residual clause of USSG §
4B1.2(a). However, neither Johnson nor
Beckles affords relief to petitioner as his §
924(c) conviction was not substantiated by an underlying
crime of violence, but rather by an underlying drug
trafficking crime, namely conspiracy to distribute 280 grams
or more of cocaine base (crack) and 500 grams or more of
cocaine, in violation of 21 U.S.C. § 846 (Count One).
[DE #114]. Therefore, the Supreme Court's decisions in
Johnson and Welch, invalidating the
residual clause of ACCA, cannot provide a basis for
petitioner's requested relief. Therefore,
petitioner's claim fails.
foregoing reasons, the government's motion to dismiss,
[DE #180], is GRANTED. Petitioner's motion to vacate, [DE
#160], is DENIED. 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 v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). A
reasonable jurist would not find this court's dismissal
of Petitioner's § 2255 Motion debatable. Therefore,
a Certificate of Appealability is DENIED.
 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 #161], and subsequently filed a motion to
withdraw as counsel. ...