United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on petitioner's motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255 (DE 243), respondent's motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure (DE 246), and petitioner's motion to amend his
motion to vacate (DE 259). Pursuant to 28 U.S.C. §
636(b)(1)(B), United States Magistrate Judge Robert B. Jones,
Jr., entered a memorandum and recommendation
(“M&R”) (DE 256), wherein it is recommended
that the court deny petitioner's § 2255 motion and
grant respondent's motion to dismiss. Petitioner timely
objected. In this posture, the issues raised are ripe for
ruling. For the reasons stated herein, petitioner's
motion to vacate is denied, respondent's motion to
dismiss is granted, and petitioner's motion to amend is
granted. The court denies petitioner a certificate of
November 6, 2008, petitioner pleaded guilty pursuant to a
written plea agreement to counts one, two, five, and seven of
a seven count indictment. (Transcript of Arraignment
(“Arr. Tr.”) (DE 149) 18:20-20:18; Plea Agreement
(DE 58) at 3-6). Count one charged armed robbery of a bank,
assaulting bank employees and others with dangerous weapons,
and aiding and abetting in violation of 18 U.S.C.
§§ 2113(a), 2113(d), and 2. Count two charged
carrying firearms during the armed bank robbery and aiding
and abetting in violation of 18 U.S.C. §§
924(c)(1)(A), and 2. Count five charged “Hobbs Act
robbery” of a jewelry store and aiding and abetting in
violation of 18 U.S.C. §§ 1951, 2. Count seven
charged possession of firearms by a felon in violation of 18
U.S.C. § 922(g)(1).
4, 2009, petitioner appeared before the district court,
represented by counsel, for sentencing. The court sentenced
petitioner to a term of imprisonment of 218 months on counts
one, five, and seven, to be served concurrently, and a term
of 84 months on count two, to be served consecutively,
producing a total term of 302 months.
1, 2010, petitioner filed his first motion to vacate, set
aside, or correct his sentence pursuant to § 2255,
alleging ineffective assistance of counsel for failing to
argue against his status as an armed career criminal. The
court ordered the judgment be vacated and reentered on
identical terms, assuming without deciding that petitioner
received ineffective assistance of counsel because his
attorney failed to file a notice of appeal or advise him of
his ability to appeal. Berry v. U.S., No.
5:08-CR-247-FL-1, 2011 WL 761478, at *2 (E.D. N.C. Feb. 24,
2011). On appeal, the United States Court of Appeals for the
Fourth Circuit upheld the amended judgment because
petitioner's plea agreement contained an appellate
waiver. United States v. Berry, 446 Fed.Appx. 661,
662 (4th Cir. 2011) (per curiam).
November 8, 2012, petitioner filed a second motion to vacate,
set aside, or correct his sentence pursuant to § 2255.
He argued that he received ineffective assistance of counsel
because his attorney did not object to his classification as
an armed career criminal. Respondent moved to dismiss. The
district court granted respondent's motion to dismiss and
denied petitioner's second § 2255 motion. Berry
v. United States, No. 5:08-CR-247-FL-1, 2014 WL
11369607, at *6 (E.D. N.C. Aug. 21, 2014). On appeal, the
Fourth Circuit denied a certificate of appealability and
dismissed petitioner's claims. United States v.
Berry, 598 Fed.Appx. 205, 205 (4th Cir. 2015) (per
curiam). However, the United States Supreme Court granted
certiorari, vacated the judgment of the Fourth Circuit, and
remanded petitioner's case for further consideration in
light of Johnson v. United States, 135 S.Ct. 2551
(2015). Berry v. United States, 136 S.Ct. 417 (2015)
(mem.). On remand, this court granted petitioner's motion
to vacate, set aside, or correct his sentence under §
2255, finding that petitioner lacked the requisite predicate
felony convictions to qualify as an armed career criminal.
(Order (DE 218) at 2 (citing 18 U.S.C. § 924(e)).
January 3, 2017, petitioner appeared before the district
court, represented by counsel, for resentencing. (Transcript
of Re-Sentencing (“Sent. Tr.”) (DE 236) at 1).
The court sentenced petitioner to a term of imprisonment of
198 months on counts one and five; 120 months on count seven,
to be served concurrently; and a term of sixty months on
count two, to be served consecutively, producing a total term
of 258 months. On October 4, 2017, the Fourth Circuit
affirmed the amended judgment of the district court.
United States v. Berry, 698 Fed.Appx. 136, 138 (4th
Cir. 2017) (per curiam). The Supreme Court denied certiorari
on February 21, 2018. Berry v. United States, 138
S.Ct. 1019 (2018) (mem.).
11, 2018, petitioner, proceeding pro se, filed his third and
instant motion to vacate pursuant to 28 U.S.C. § 2255.
Petitioner's motion raises four grounds for relief: 1) he
received ineffective assistance of counsel at resentencing,
2) respondent failed to disclose impeachment evidence, 3) he
received an illegal sentence, and 4) he received ineffective
assistance of counsel in his 2017 appeal. On July 16, 2018,
respondent filed its motion to dismiss. In response to the
motion to dismiss, petitioner additionally contends that his
guilty plea should be vacated as unknowing. The M&R
rejects each ground for relief asserted by petitioner.
addition to objecting to the M&R, petitioner filed the
instant motion to amend or supplement his § 2255 motion.
Petitioner argues that his conviction for use or possession
of a firearm in furtherance of a crime of violence is void
for vagueness. He also argues that he did not know that he
was prohibited from possessing a firearm due to his
conviction as a felon.
Standard of Review
district court reviews de novo those portions of the M&R
to which specific objections are filed. 28 U.S.C. §
636(b). The court does not perform a de novo review where a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir.1983).
careful review of the record, “the court may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1).
petitioner seeking relief pursuant to 28 U.S.C. § 2255
must show that “the sentence was imposed in violation
of the Constitution or 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.” 28
U.S.C. § 2255(a). “Unless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect
thereto.” 28 U.S.C. § 2255(b). “The Federal
Rules of Civil Procedure and the Federal Rules of Criminal
Procedure, to the extent that they are not inconsistent with
any statutory provisions, or the [§ 2255 Rules], may be
applied to” § 2255 proceedings. Rules Governing
Section 2255 Proceedings, Rule 12.
Withdrawal of Plea Petitioner argues that he should be
allowed to withdraw his guilty plea because it was not
knowingly and voluntarily made.
“[A] defendant does not have an absolute right to
withdraw a guilty plea, even before sentencing.”
United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). Under Federal Rule of Criminal Procedure 11(d)(2)(B),
a criminal defendant must “show a fair and just reason
for requesting the withdrawal.” To determine whether
petitioner has met this burden, the United States Court of
Appeals for the Fourth Circuit set forth the following six
1) whether the defendant has offered credible evidence that
his plea was not knowing or not voluntary, 2) whether the
defendant has credibly asserted his legal innocence, 3)
whether there has been a delay between the entering of the
plea and the filing of the motion, 4) whether defendant has
had close assistance of competent counsel, 5) whether
withdrawal will cause prejudice to ...