United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGE, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255 [CV Doc. 1] and the Government's Motion to Dismiss
[Doc. 7]. The Petitioner is represented by Ann L. Hester of
the Federal Defenders of Western North Carolina.
October 2002, the Petitioner Gregory Allen Oaks was charged
in a Bill of Indictment with one count of possession with
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (“Count One”); one count of
using a firearm during and in relation to a drug-trafficking
offense, in violation of 18 U.S.C. § 924(c)
(“Count Two”); and one count of possession of a
firearm after having been convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1). [CR Doc. 1: Indictment]. The
Petitioner faced a maximum term of imprisonment of 20 years
for Count One, see 21 U.S.C. § 841(a)(1) and
841(b)(1)(C), and a mandatory consecutive sentence of not
less than 7 years to life for Count Two, see 18 U.S.C. §
924(c)(1)(A). As for Count Three, as charged, the Petitioner
faced a statutory maximum of 10 years, see 18 U.S.C. §
924(a)(2). However, the Government subsequently filed a
Notice, advising the Petitioner that the Government intended
to prosecute him as an Armed Career Criminal pursuant to the
Armed Career Criminal Act, 18 U.S.C. § 924(e)
(“ACCA”), in light of the Petitioner's prior
convictions for the following:
(1) A 1979 Tennessee conviction for Criminal Sexual Conduct
in the First Degree, for which the Petitioner was sentenced
to a term of 15 years' imprisonment;
(2) A 1985 North Carolina conviction for Assault with a
Deadly Weapon Inflicting Serious Injury
(“AWDWISI”), for which the Petitioner was
sentenced to a term of three years' imprisonment;
(3) A 1987 Tennessee conviction for Aggravated Assault, for
which the Petitioner was sentenced to a term of two
(4) A 1993 Tennessee conviction for Felony Escape, for which
the Petitioner was sentenced to a term of one year's
(5) A 1993 Tennessee conviction for Aggravated Robbery, for
which the Petitioner was sentenced to a term of eight
[CR Doc. 15: ACCA Notice]. This Notice increased the
Petitioner's potential maximum punishment to a term of 15
years to life. See 18 U.S.C. §§ 922(g)(1) and
March 2003, a jury found the Petitioner guilty on all three
counts. [CR Doc. 34: Jury Verdict]. In preparation for
sentencing, a probation officer prepared a Presentence Report
(PSR). In calculating the Petitioner's offense level, the
probation officer classified the Petitioner as both an armed
career criminal under 18 U.S.C. § 924(e) and U.S.S.G.
§ 4B1.4 and a career offender under U.S.S.G. §
4B1.1. [CR Doc. 77: PSR at 7 ¶ 36]. Because the offense
level for armed career criminal was greater than that for
career offender, see U.S.S.G. § 4B1.4, the probation
officer recommended applying the armed career criminal
offense level, for a total offense level (TOL) of 34.
[Id.]. As for the Petitioner's criminal history,
the probation officer calculated a total of 10 criminal
history points, which would have established a criminal
history category (CHC) of V. However, because of the
application of the Armed Career Criminal Act, see U.S.S.G.
§ 4B1.4(c)(2), the Petitioner's CHC became VI.
[Id. at 13 ¶ 58]. Based on a TOL of 34 and a
CHC of VI, the Petitioner's Guidelines range was
calculated to be 262 to 327 months, plus a mandatory
consecutive sentence of not less than 7 years for Count Two.
[Id. at 21 ¶ 110].
Petitioner's sentencing hearing was held on January 29,
2004, before the Honorable Lacy H. Thornburg, United States
District Judge. At the hearing, the Court adopted the
Guidelines range as calculated in the PSR and sentenced the
Petitioner to a term of 240 months' imprisonment on Count
One; a term of 300 months' imprisonment on Count Three,
to run concurrently with Count One; and a term of 84 months
on Count Two, to run consecutively to Counts One and Three,
for a total of 384 months' imprisonment. [CR Doc. 52].
Petitioner appealed. [CR Doc. 51]. On appeal, the Fourth
Circuit Court of Appeals affirmed the Petitioner's
convictions but vacated the sentence and remanded for
resentencing due to the lack of factual findings to support
the brandishing enhancement for the § 924(c) conviction.
[See CR Doc. 58]. On remand, the Court made the requisite
findings to support the brandishing enhancement and sentenced
the Petitioner to the same sentence. [CR Doc. 67]. The
Petitioner again appealed [CR Doc. 64], and his convictions
and sentence were affirmed on August 31, 2007. [CR Doc. 78].
6, 2016, the Petitioner filed the present motion to vacate
his sentence under 28 U.S.C. § 2255, arguing that his
sentence was improperly enhanced under the ACCA in light
of Johnson v. United States, 135 S.Ct. 2551 (2015).
[CV Doc. 1]. Upon the request of the Government, this matter
was stayed pending the Supreme Court's decision in
Beckles v. United States, 137 S.Ct. 886 (2017). [CV
Doc. 6]. Following the Beckles decision, the Government filed
a motion to dismiss the Petitioner's motion. [CV Doc. 7].
The Petitioner filed a response in opposition to the motion
to dismiss. [CV Doc. 8]. At the request of the Court [CV Doc.
9], the parties filed supplemental briefs in April 2018 [CV
Docs. 10, 11].
been fully briefed, this matter is ripe for disposition.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the argument presented by the Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
Government first argues that the Petitioner's Johnson
claim is subject to dismissal because he failed to raise such
claim on direct review and he has not shown cause or
prejudice to excuse that procedural default. In support of
this argument, the Government cites Whiteside v. United
States, in which the Fourth Circuit noted that
“alleged futility cannot serve as ‘cause' for
a procedural default in the context of collateral
review.” 775 F.3d 180, 185 (4th Cir. 2014) (en banc),
cert. denied, 135 S.Ct. 2890 (2015).
well-established that where a defendant has procedurally
defaulted a claim by failing to raise it on direct review,
the claim may be raised on collateral review only if the
defendant can first demonstrate cause and actual prejudice or
that he is actually innocent of the conviction he challenges.
Bousley v. United States, 523 U.S. 614, 622 (1998);
see also Trevino v. Thaler, 569 U.S. 413, 421 (2013)
(“A prisoner may obtain federal review of a defaulted
claim by showing cause for the default and prejudice from a
violation of federal law.”) (quoting Martinez v.
Ryan, 566 U.S. 1, 10 (2012)). With respect to the
cause-and-prejudice standard, a petitioner must demonstrate
(1) the existence of cause for a procedural default that
“turns on something external to the defense”; and
(2) “actual prejudice resulting from the errors of
which he complains.” United States v.
Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citations
are, however, exceptions to this cause-and-prejudice
standard. In Reed v. Ross, the Supreme Court
recognized three specific situations in which the novelty of
a constitutional claim would operate as the functional
equivalent for “cause” relieving a
defendant's failure to raise the issue directly:
First, a decision of this Court may explicitly overrule one
of our precedents. Second, a decision may overturn a
longstanding and widespread practice to which this Court has
not spoken, but which a near-unanimous body of lower court
authority has expressly approved. And, finally, a decision
may disapprove a practice this Court arguably has sanctioned
in prior cases.
468 U.S. 1, 17 (1984) (internal citations, alterations, and
quotation marks omitted).
case falls within the second category of cases identified by
Reed. When the Petitioner was sentenced in 2006, there was a
“longstanding and widespread practice” of
imposing punishment under the residual clause and a
“unanimous body of lower court authority”
approving the use of the residual clause. See Id.
The Fourth Circuit had expressly ruled that the “ACCA
is not void for vagueness.” United States v.
Presley,52 F.3d 64, 68 (4th Cir.), cert. denied, 516
U.S. 891 (1995). Every other circuit to consider the issue
also had expressly rejected the type of void-for-vagueness
challenges that ultimately prevailed in Johnson. See, e.g.,
United States v. Childs,403 F.3d 970 (8th Cir.),
cert. denied, 546 U.S. 954 (2005); United States v.
Sorenson,914 F.2d 173, 175 (9th Cir. 1990), cert.
denied, 498 U.S. 1099 (1991); United States v. Veasey,
No. 95-5060, 1995 WL 758439, *2 (6th Cir. Dec. 21, 1995)
(unpublished). Thus, under Reed, the Petitioner has
established “cause” for failing to raise a
vagueness challenge to the ACCA's residual clause on
direct appeal. See Reed, 468 U.S. at 17 (“By
definition, when a case falling into one of the first two
categories is given retroactive application, there will
almost certainly have been no reasonable basis upon which an
attorney previously could have urged a state court to adopt
the position that this Court has ultimately adopted.