Gibbs v. USA

Filing 10

MEMORANDUM OF DECISION AND ORDER that the Government's 6 Motion to Dismiss is GRANTED, and the Petitioner's Section 2255 Motion to Vacate, Set Aside, or Correct Sentence is DENIED and DISMISSED WITH PREJUDICE. Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 6/23/2017. (Pro se litigant served by US Mail.) (khm) Modified text on 6/23/2017 (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00129-MR
CRIMINAL CASE NO. 1:13-cr-00027-MR-DLH-1

FRANKLIN DESHUN GIBBS,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
)

MEMORANDUM OF
DECISION AND ORDER

This matter is before the Court on Petitioner’s Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 [Civil Case No. 1:16-cv00129-MR (“CV”), Docs. 1, 3] and on the Government’s Motion to Dismiss
[CV Doc. 6].
BACKGROUND
On June 6, 2013, Petitioner pled guilty in this Court to possession of a
firearm by a felon. [Criminal Case No. 1:13-cr-00027-MR-DLH-1 (“CR”),
Doc. 13: Acceptance and Entry of Guilty Plea]. The presentence report
(“PSR”) noted that Petitioner had two prior convictions that triggered an
enhancement to his base offense level under U.S.S.G. § 2K2.1(a)(2): a 2006

North Carolina conviction for felony discharge of a weapon into occupied
property and a 2010 North Carolina conviction for felony habitual
misdemeanor assault. [CR Doc. 22 at ¶¶ 17, 40, 46: PSR]. Based on the §
2K2.1 enhancement, Petitioner faced a Guidelines range of 77 to 96 months.
[Id. at ¶ 121]. On August 7, 2014, this Court imposed a sentence of 82
months’ imprisonment. [CR Doc. 24: Judgment]. Petitioner did not appeal.
On June 26, 2015, in Johnson v. United States, the Supreme Court
held that the residual clause of the Armed Career Criminal Act (“ACCA”)—
which covered any offense that “otherwise involves conduct that presents a
serious potential risk of physical injury to another”—is “unconstitutionally
vague.” 135 S. Ct. 2551, 2557 (2015). Based on that holding, the Court
concluded that “imposing an increased sentence under the residual clause...
violates the Constitution’s guarantee of due process.” Id. at 2563.
On around May 9, 2016, Petitioner filed a pro se motion to vacate,
raising a Johnson claim.

[CV Doc. 1].

The Federal Defender was

subsequently appointed to represent Petitioner pursuant to a standing order
of this Court. On June 19, 2016, counsel filed a supplemental motion to
vacate on Petitioner’s behalf. [Doc. 3]. In the supplemental motion to vacate,
Petitioner argues that, under Johnson, his prior convictions for felony
discharge of a weapon into occupied property and for felony habitual
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misdemeanor assault no longer qualify as predicates for a base-offense level
enhancement under U.S.S.G. § 2K2.1(a). Petitioner reasons that because
the language of U.S.S.G. § 2K2.1(a) is the same as the language in the
ACCA’s residual clause that was struck down in Johnson, it follows that an
enhanced sentence under U.S.S.G. § 2K2.1(a) is also invalid under
Johnson.
On August 8, 2016, the Court placed Petitioner’s motion in abeyance
pending the outcome of Beckles v. United States, S. Ct. No. 15-8455, in
which petitioner argued that his career-offender sentence was erroneously
enhanced by an unconstitutionally vague residual clause of U.S.S.G. §
4B1.2. [CV Doc. 5]. On March 6, 2017, the Supreme Court held in Beckles
that “the advisory Guidelines are not subject to vagueness challenges.” 137
S. Ct. 886, 890 (2017). On May 4, 2017, the Government filed the present
motion to dismiss, arguing that Petitioner’s Johnson challenge to his
enhanced sentence under U.S.S.G. § 2K2.1(a) has no validity in light of
Beckles. [CV Doc. 6]. On May 9, 2017, the Court granted the Federal
Defender’s motion to withdraw from representation of Petitioner. [CV Doc.
8]. In the Court’s order, the Court gave Petitioner twenty days to file a pro
se response to the Government’s motion to dismiss. [Id.]. Petitioner has not
responded and the time to do so has passed.
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STANDARD OF REVIEW
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 motion to vacate 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).
DISCUSSION
As noted, Petitioner relies on Johnson in challenging his enhanced
sentence under U.S.S.G. § 2K2.1(a). In Beckles, however, the Supreme
Court held that “the advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause.” 137 S. Ct. at 890. Thus, the
holding in Beckles has foreclosed Petitioner’s Johnson claim, and the Court
will therefore deny and dismiss the petition and grant the Government’s
motion to dismiss.
The Court finds that the Petitioner has not made a substantial showing
of a denial of a constitutional right. See generally 28 U.S.C. § 2253(c)(2);
see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy
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§ 2253(c), a “petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or
wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)). Petitioner
has failed to demonstrate both that this Court’s dispositive procedural rulings
are debatable, and that the Motion to Vacate states a debatable claim of the
denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). As a result, the Court declines to issue a certificate of appealability.
See Rule 11(a), Rules Governing Section 2255 Proceedings for the United
States District Courts, 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that the Government’s Motion to
Dismiss [CV Doc. 6] is GRANTED, and the Petitioner’s Section 2255 Motion
to Vacate, Set Aside, or Correct Sentence [CV Docs. 1, 3], is DENIED and
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.

Signed: June 23, 2017

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