United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 38], The government has moved to dismiss
petitioner's § 2255 motion. [DE 50], For reasons
discussed below, petitioner's motion [DE 38] is DENIED
and the government's motion to dismiss [DE 50] is
28, 2004, a jury in this district found petitioner Eric
Dobbin ("petitioner") guilty of two counts of bank
robbery, in violation of 18 U.S.C. § 2113(a), (d), and
two counts of using, carrying, and brandishing a firearm in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1). United Stales v. Dobbin,
5:04-CR-00070-F-1 (E.D. N.C. June 28, 2004). On October 20,
2004, Judge James C. Fox sentenced petitioner to an aggregate
term of 484 months imprisonment. Petitioner subsequently
filed a notice of appeal to the United States Court of
Appeals for the Fourth Circuit, which affirmed
petitioner's conviction and sentence on July 18, 2005.
United States v. Dobbin, 139 Fed.Appx. 518, 519 (4th
1, 2019, petitioner filed for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Because petitioner did not
demonstrate that 28 U.S.C. § 2255 was an
"inadequate or ineffective remedy[, ]" petitioner
granted the Court permission to recharacterize his motion as
a § 2255. DE 39, 40.
the instant motion, petitioner challenges his 18 U.S.C.
§ 924(c)(1) conviction, arguing that in light of the
Supreme Court's decision in Sessions v. Dimaya,
138 S.Ct, 1204(2018), armed bank robbery no longer qualifies
as a predicate crime of violence under § 924(c)(3).
Petitioner's § 2255 motion is denied.
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 bylaw, or that it is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a).
one-year period of limitations applies to motions under
§ 2255, which runs from the latest of the judgment
becoming final, the removal of a legal impediment, initial
recognition of a right, or when due diligence would have
revealed supporting facts. § 2255(f).
neither Dimaya nor United States v. Davis,
139 S.Ct. 2319 (2019), which invalidated the residual clause
of § 924(c)(3), provide petitioner any basis to get
around § 2255's time bar. Armed bank robbery remains
a crime of violence under the force clause of §
924(c)(3), United States v. McNeal, 818 F.3d 141,
157 (4th Cir. 2016). Accordingly, petitioner's 924(c)
conviction stands as he has a proper crime of violence
predicate to support the conviction.
also includes an actual innocence claim in his § 2255.
DE 38-1 at 3. "[T]o establish actual innocence a
petitioner must demonstrate actual factual innocence of the
offense of conviction, i.e., that petitioner did not commit
the crime of which he was convicted; this standard is not
satisfied by a showing that a petitioner is legally, but not
factually, innocent." United States v.
Mikalajunas, 186 F, 3d 490, 494 (4th Cir. 1999); see
also United States v. Pettiford, 612 F.3d 270, 282 (4th
Cir. 2010). In his § 2255, petitioner does not allege
that he is factually innocent of the underlying crime but
essentially doubles down on his contention that his
conviction under § 924(c) is invalid because of
Dimaya. His actual innocence claim therefore fails.
The government's motion to dismiss petitioner's
§ 2255 motion is granted.
government has moved to dismiss petitioner's § 2255
motion under Federal Rule of Civil Procedure 12(b)(6). A Rule
12(b)(6) motion to dismiss must be granted if the pleading
fails to allege enough facts to state a claim for relief that