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Berry v. United States

United States District Court, E.D. North Carolina, Western Division

December 17, 2019

LARRY LAVONNE BERRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This 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 appealability.

         BACKGROUND

         On 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).

         On June 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.

         On June 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).

         On 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)).

         On 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.).

         On June 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.

         In 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.

         DISCUSSION

         A. Standard of Review

         The 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).

         Upon 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).

         A 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.

         B. Analysis

         1. 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 factors:
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 ...

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