United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE Chief United States District Judge
cause is before the court to address petitioner's pro se
motion to vacate, set aside, or correct a sentence under 28
U.S.C. § 2255 [D.E. 40] and respondent's motion to
dismiss [D.E. 45].
9, 2016, pursuant to a written plea agreement, petitioner
pleaded guilty to manufacture of child pornography, in
violation of 18 U.S.C. §§ 2251(a) and 2251(e)
(Count One). See Mem. of Plea [D.E. 21]; Hr'g
Tr. [D.E. 35] at 14. On August 30, 2016, over
petitioner's objection, the court applied § 4B1.5(b)
of the United States Sentencing Guidelines (U.S.S.G. or
Guidelines), which provides for a five-point sentence
enhancement if "the defendant's instant offense of
conviction is a covered sex crime ... and the defendant
engaged in a pattern of activity involving prohibited sexual
conduct." See Sentencing Hr'g Tr. [D.E. 34] at
13-14. The court then sentenced petitioner to, among other
things, 360 months' imprisonment. Id. at 23; J.
appealed, challenging the substantive reasonableness of the
sentence pursuant to Anders v. California, 386 U.S.
738 (1967). See [D.E. 30]. On February 1, 2017, the United
States Court of Appeals for the Fourth Circuit ("Fourth
Circuit") issued an unpublished opinion that granted the
Government's motion to dismiss the appeal pursuant to
petitioner's waiver and otherwise affirmed the district
court's judgment [D.E. 37].
February 16, 2018, petitioner filed the instant section 2255
motion [D.E. 40]. Petitioner argues that: (1) the government
violated the terms of petitioner's plea agreement by
seeking an enhanced sentence under U.S.S.G. § 4B1.5(b);
and (2) his counsel was constitutionally ineffective in
failing to object to this enhancement. Id. at 4-6.
April 9, 2018, respondent moved to dismiss this section 2255
motion under Federal Rule of Civil Procedure 12(b)(6). See
Resp't Mot. Dismiss [D.E. 45]; Resp't Mem. [D.E. 46].
The court notified petitioner of the pending motion to
dismiss, the deadline for filing a response, and the
consequences of failing to respond [D.E. 47]. Petitioner did
not timely respond but moved out-of-time for an extension of
time to respond and asserted he was under the impression that
the Federal Public Defender would file a motion on his behalf
[D.E. 48]. On August 8, 2019, the court granted
petitioner's motion for an extension of time [D.E. 49].
On August 26, 2019, petitioner again moved for an extension
of time [D.E. 50]. On September 13, 2019, the court granted
petitioner a final extension of time [D.E. 51]. On October 3,
2019, petitioner filed a response [D.E. 53].
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for "failure to state a claim upon which relief
can be granted" tests the legal sufficiency of the
pleading and should be granted unless the pleading states a
facially plausible claim for relief. See Fed.R.Civ.P.
12(b)(6); 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). When considering a
Rule 12(b)(6) motion, the court assumes the truth of all
facts alleged in the complaint, but need not accept legal
conclusions drawn from the facts. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam). A court
also "need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments." Giarratano
v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quotation
first argues that the government violated the terms of his
plea agreement by requesting an enhancement of his sentence
in reliance on criminal conduct not covered by terms of his
guilty plea. See [D.E. 40] at 4. The record reflects that the
enhancement was sought under U.S.S.G. §4B1.5(b).
Sentencing Hr'g Tr. [D.E. 34] at 13-14; Pre-sentence
Report [D.E. 24] at¶47.
section 4B 1.5(b) states:
(b) In any case in which the defendant's instant offense
of conviction is a covered sex crime, neither § 4B1.1
nor subsection (a) of this guideline applies, and the
defendant engaged in a pattern of activity involving
prohibited sexual conduct:
(1) The offense level shall be 5 plus the offense level
determined under Chapters Two and Three. However, if the
resulting offense level is less than level 22, the offense
level shall be level 22, decreased by the number of levels
corresponding to any applicable adjustment from § 3E1.1.
(2) The criminal history category shall be the criminal
history category determined under ...