United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1), in which he raises a claim
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015). The Government has filed a Motion to Dismiss
Petitioner's Motion to Vacate, Set Aside, or Correct
Sentence, (Doc. No. 7).
pled guilty in the underlying criminal case to: Count (1),
attempted murder of victim 1 in aid of racketeering and
aiding and abetting the same (18 U.S.C. §§
1959(a)(5), 2); Count (2), assault with a dangerous weapon of
victim 2 in aid of racketeering activity and aiding and
abetting the same (18 U.S.C. §§ 1959(a)(3), 2); and
Count (4), discharging a firearm during and in relation to a
crime of violence, the assault of victim 2 (18 U.S.C. §
924(c)). (3:10-cr-73, Doc. Nos. 3, 25). As part of his guilty
plea, Petitioner waived his direct appeal and post-conviction
rights except for claims of prosecutorial misconduct and
ineffective assistance of counsel. See
(Id., Doc. No. 25 at 6).
Presentence Investigation Report (“PSR”) scored
the base offense level as 28 after applying the
multiple-count adjustment. (Id., Doc. No. 50 at
¶ 50). Three levels were deducted for acceptance of
responsibility, resulting in a total offense level of 25.
(Id., Doc. No. 50 at ¶ 53). No. Chapter Four
enhancement was applied. (Id., Doc. No. 50 at ¶
51). Petitioner had a total of nine criminal history points
and a criminal history category of IV. (Id., Doc.
No. 50 at ¶ 67). The resulting advisory guideline range
was 84 to 105 months' imprisonment plus a minimum
mandatory consecutive sentence of not less than 10 years for
the § 924(c) conviction. (Id., Doc. No. 50 at
Court adopted the PSR without change and sentenced Petitioner
within the advisory range to a total of 220 months'
imprisonment comprised of 100 months for Counts (1) and (2),
concurrent, and 120 months for Count (4), consecutive.
(Id., Doc. No. 69); see (Id., Doc.
No. 70). Petitioner filed, then voluntarily dismissed, a
direct appeal. See (Id., Doc. No. 73).
filed an application with the Fourth Circuit Court of Appeals
for authorization to file a second or successive § 2255
Motion to Vacate. The Fourth Circuit denied successiveness
authorization as unnecessary and transferred the matter to
this Court where it was docketed as the instant § 2255
Motion to Vacate. See (Doc. Nos. 1-1, 1-2). The
§ 2255 Motion to Vacate was filed under the prisoner
mailbox rule on June 17, 2016. Petitioner argues that the
§ 924(c) conviction and sentence and career offender
enhancement violate due process pursuant to Johnson v.
United States, 135 S.Ct. 2551 (2015). (Doc. No. 1).
case was stayed for several years during the pendency of
United States v. Ali, Fourth Circuit No. 15-4433,
and United States v. Davis, United States Supreme
Court No. 18-431. See (Doc. Nos. 3, 4). On August
23, 2019, the Government filed a Motion to Dismiss arguing
that the § 2255 Motion to Vacate is waived, procedurally
barred, and meritless. (Doc. No. 7). Petitioner was informed
of the applicable legal standard and was provided the
opportunity to respond. (Doc. No. 8). Petitioner filed a
Response, (Doc. No. 11), in which he appears to argue that he
should not be bound by the waiver contained in his plea
agreement because it is a broad waiver of a substantive
constitutional right, its enforcement would result in a
miscarriage of justice because he is actually innocent of the
§ 924(c) offense, and that the Government “waived
its waiver argument” by failing to raise it when the
Fourth Circuit transferred the case to this Court.
See (Doc. No. 11 at 5). Petitioner further argues
that his § 2255 Motion to Vacate is not procedurally
defaulted because it was timely filed within a year of
Johnson's issuance pursuant to §
SECTION 2255 STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). Rule 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 arguments
presented by 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).
guilty plea constitutes a waiver of all nonjurisdictional
defects, including the right to contest the factual merits of
the charges.” United States v. Willis, 992
F.2d 489, 490 (4th Cir. 1993). Thus, after a
guilty plea, a defendant may not “raise independent
claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea.”
Blackledge v. Perry, 417 U.S. 21, 29-30 (1974).
Rather, he is limited “to attacks on the voluntary and
intelligent nature of the guilty plea, through proof that the
advice received from counsel was not within the range of
competence demanded of attorneys in criminal cases.”
Id. There are narrow exceptions to the
enforceability of plea waivers such that “even a
knowing and voluntary waiver of the right to appeal cannot
bar the defendant from obtaining appellate review of certain
claims” such as a sentence imposed in excess of the
statutory maximum or a challenge to the validity of a guilty
plea. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); see United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992).
knowing and voluntary plea included an enforceable waiver of
his post-conviction rights except for claims of ineffective
assistance of counsel and prosecutorial misconduct, and
waived all non-jurisdictional defects. No. error occurred,
such as sentencing beyond the statutory maximum, that would
warrant setting aside the waiver. See Section (3),
infra. Petitioner's post-conviction challenges
were waived by ...