United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 210]. Also before the Court is
respondent's motion to dismiss. [DE 218]. The stay
previously entered in this matter has been lifted. For the
reasons that follow, petitioner's § 2255 motion is
Gomez, is currently serving a sentence of 170 months'
imprisonment after pleading guilty to counts one and three of
an eight-count indictment charging Gomez and others with
robbery and firearm offenses. Gomez pleaded guilty to
conspiracy to rob businesses engaged in interstate commerce
(count one), 18 U.S.C. § 1951(b); and using and carrying
a firearm during and in relation to a crime of violence and
aiding and abetting (count three), 18 U.S.C. §§
924(c)(1)(A) and 2. Gomez was sentenced to 110 months'
imprisonment on count one and sixty months' imprisonment
on count three, to be served consecutively. [DE 200].
filed a pro se 28 U.S.C. § 2255 motion claiming
that he received the ineffective assistance of counsel and
challenging his 18 U.S.C. § 924(c) conviction in light
of the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). Appointed counsel
filed a notice joining in Gomez's claim that his §
924(c) conviction is infirm in light of Johnson. [DE
241]. The government has moved to dismiss Gomez's §
2255 motion pursuant to Rule 12(b)(6) of the Federal Rules of
motion by the government, the case was stayed on October 3,
2018, to await decisions by the Fourth Circuit in United
States v. Walker, 934 F.3d 375 (4th Cir. 2019), and
United States v. Simms, 914 F.3d 229 (4th Cir.
2019). Although Simms was decided on January 24,
2019, the mandate in Simms was stayed to await the
Supreme Court's decision in United States v.
Davis, 139 S.Ct. 2319 (2019). Following the Supreme
Court's decision in Davis and the Fourth
Circuit's mandate in Simms, this Court sua
sponte lifted the stay in this matter and ordered
additional briefing. In this posture, the § 2255 motion
is ripe for adjudication.
motion under 28 U.S.C. § 2255 will be granted where the
petitioner has shown that his sentence was imposed in
violation of the Constitution or laws of the United States,
that the court was without jurisdiction to impose the
sentence, that the sentence was in excess of the maximum
sentence authorized by law, or that it is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a).
12(b)(6) motion to dismiss must be granted if the pleading
fails to allege enough facts to state a claim for relief that
is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also
Rule 12, Rules Governing Section 2255 Proceedings (applying
the Federal Rules of Civil Procedure to Section 2255
proceedings). Additionally, "vague and conclusory
allegations contained in a § 2255 petition may be
disposed of without further investigation by the District
Court." United States v. Dyess, 730 F.3d 354,
359 (4th Cir. 2013) (quoting United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
Court considers first Gomez's claim that he received the
ineffective assistance of counsel. To state a claim for
ineffective assistance of counsel under the governing
standard in Strickland v. Washington, 466 U.S. 668
(1984), a petitioner must show "that counsel's
performance fell below an objective standard of
reasonableness." Sharpe v. Bell, 593 F.3d 372,
382 (4th Cir. 2010) (internal quotation marks omitted). A
court's "scrutiny of counsel's performance must
be highly deferential." Id. In fact, there is a
'"strong presumption' that a trial counsel's
strategy and tactics fall 'within the wide range of
reasonable professional assistance.'" United
States v. Roane, 378 F.3d 382, 404 (4th Cir. 2002)
(quoting Strickland, 466 U.S. at 689). A petitioner
must further show that "there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694. In
other words, a petitioner must demonstrate both that
counsel's performance was deficient and that, but for
counsel's deficiency, the result of the proceeding would
have been different.
claims that his trial counsel was ineffective in failing to
advise him about the applicability of relevant conduct,
sentencing enhancements, and acceptance of responsibility
under the United States Sentencing Guidelines, and that, had
he known what an integral role the Guidelines would play in
sentencing, he would not have pleaded guilty. Gomez's
presentence report reveals that he received one Guidelines
enhancement for being a leader or organizer, to which his
counsel objected. Gomez further received a three-level
reduction in his Guidelines calculation based on acceptance
of responsibility. Gomez's claim that he would have not
pleaded guilty had he received a more detailed explanation of
the Sentencing Guidelines is conclusory, and he has failed to
plausibly allege that his counsel's conduct fell below an
objective standard of reasonableness. Accordingly, his
ineffective assistance of counsel claims fails, and a hearing
Court next considers Gomez's claim that his § 924(c)
conviction is infirm. A defendant shall be subject to a
consecutive sentence if he "during and in relation to
any crime of violence or drug trafficking crime ... for which
the person may be prosecuted in a court of the United States,
uses or carries a firearm or who, in furtherance of any such
crime, possesses a r firearm . . .." 18 U.S.C. §
924(c)(1)(A). The predicate offense for Gomez's
conviction under 18 U.S.C. § 924(c) in count three is
his interference with commerce by robbery (Hobbs Act robbery)
charge in count two.
924(c) defines a crime of violence as a felony offense that
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of