Opinion
No. 2:05-CR-29-FL-1 No. 2:16-CV-38-FL
07-17-2017
FRANKLIN SHURON JONES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 96), which challenges petitioner's sentence in light of the Supreme Court's ruling in Johnson v. United States, 135 S. Ct. 2551 (2015). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 107). The issues raised are ripe for ruling. For the reasons that follow, this court denies petitioner's motion to vacate and grants the government's motion to dismiss.
BACKGROUND
On May 15, 2006, petitioner pleaded guilty to the following: distribution of more than five grams of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) (Counts One and Two); and distribution of more than five grams of cocaine base (crack) and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Three). On January 29, 2007, this court sentenced petitioner to 188 months imprisonment on each of Counts One, Two, and Three, to be served concurrently.
Petitioner appealed, and the Fourth Circuit Court of Appeals affirmed. See United States v. Jones, 260 F. App'x 574 (2008) (per curiam). Petitioner filed a petition for certiorari with the Supreme Court, which was denied on May 12, 2008. See Jones v. United States, 553 U.S. 1042 (2008).
On April 9, 2012, petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255. The motion was denied on December 31, 2012. On June 21, 2016, the Fourth Circuit Court of Appeals granted authorization for petitioner to file a second or successive § 2255 motion. On June 23, 2016, petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255, arguing that he was improperly enhanced as a career offender in light of Johnson, 135 S. Ct. at 2551.
On July 28, 2016, this case was stayed pending the Supreme Court's final decision in Beckles v. United States, 15-8544. On March 14, 2017, the stay was lifted. Petitioner was given thirty days to show cause why his § 2255 motion should not be dismissed in light of Beckles v. United States, 137 S. Ct. 886 (2017). Petitioner timely responded. On May 22, 2017, the government filed its motion to dismiss for failure to state a claim upon which relief can be granted. On June 23, 2017, petitioner filed a response in opposition.
COURT'S DISCUSSION
A. Standard of Review
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." Id. § 2255(b). B. Analysis
Prior to Johnson, an offense was deemed a "violent felony" under the Armed Career Criminal Act's ("ACCA") so-called "residual clause" if it was punishable by greater than one year's imprisonment and "involve[d] conduct that present[ed] a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). In Johnson, the Supreme Court struck down the residual clause of the ACCA as unconstitutionally vague. 135 S. Ct. at 2563. The Supreme Court recently held, however, that "the Guidelines are not amenable to a vagueness challenge." Beckles, 137 S. Ct. at 894. Therefore, the residual clause of the former sentencing guidelines is not void for vagueness. Id. at 892.
The definition of "crime of violence," revised August 1, 2016, no longer contains a residual clause. --------
In light of United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016) (holding that "North Carolina common law robbery does not qualify categorically as a 'violent felony' under the [force clause of the] ACCA."), petitioner contends that his North Carolina conviction for common law robbery is not a valid predicate conviction for career offender status. While there are similarities between the definition of "violent felony" addressed in Johnson and the definition of "crime of violence" found in the career offender guidelines, see United States v. Seay, 553 F.3d 732, 738 (4th Cir. 2009), the Supreme Court's holding in Beckles precludes relief. C. Certificate of Appealability
A certificate of appealability may issue only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate that reasonable jurists could debate whether the issues presented should have been decided differently or that they are adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). After reviewing the claim presented on collateral review in light of the applicable standard, the court finds that a certificate of appealability is not warranted.
CONCLUSION
Based on the foregoing, this court DENIES petitioner's motion to vacate (DE 96) and GRANTS the government's motion to dismiss (DE 107). This court also DENIES a certificate of appealability. The clerk is DIRECTED to close this case.
SO ORDERED, this the 17th day of July, 2017.
/s/_________
LOUISE W. FLANAGAN
United States District Judge