United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge.
matter is before the Court on Petitioner's [ECF No. 82]
motion to vacate pursuant to 28 U.S.C. § 2255. Relying
on Johnson v. United States, 135 S.Ct. 2551 (2015),
Petitioner argues he was improperly classified as an armed
career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e).
29, 2016, the government filed a response and motion for
summary judgment arguing Petitioner was not entitled to
relief because he has three predicate offenses which continue
to qualify him as an armed career criminal. The issue in this
case is whether Petitioner's prior convictions for
breaking and entering in North Carolina qualify as a violent
felonies under the ACCA.
reasons stated below, the Court grants Respondent's
motion for summary judgment, dismisses Petitioner's
motion to vacate, and dismisses this case with
February 22, 2005, Petitioner pled guilty to felon in
possession of a firearm in violation of 18 U.S.C. §
922(g). The Presentence Investigation Report prepared by the
U.S. Probation Office determined that Petitioner's
advisory guideline range was 180 to 210 months imprisonment.
A sentencing hearing was held on May 4, 2005. At sentencing,
the Court sentenced Petitioner to 180 months imprisonment.
The judgment was entered on May 16, 2005.
first motion to vacate pursuant to 28 U.S.C. § 2255 was
denied on July 2, 2008. The Fourth Circuit Court of Appeals
authorized the present § 2255 motion to vacate on May 4,
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. In order to move the court
to vacate, set aside, or correct a sentence under §
2255, a petitioner must prove that one of the following
occurred: (1) a sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose such a sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). “The writ of habeas corpus
and its federal counterpart, 28 U.S.C. § 2255,
‘will not be allowed to do service for an appeal.'
(internal citation omitted). For this reason,
nonconstitutional claims that could have been raised on
appeal, but were not, may not be asserted in collateral
proceedings. (internal citations omitted) Even those
nonconstitutional claims that could not have been asserted on
direct appeal can be raised on collateral review only if the
alleged error constituted ‘a fundamental defect which
inherently results in a complete miscarriage of
justice'”. Stone v. Powell, 428 U.S. 465,
n. 10 (1976); see also United States v. Boyd, No.
02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002)
(“Non-constitutional claims that could have been raised
on direct appeal . . . may not be raised in a collateral
proceeding under § 2255.”).
argues he was improperly designated an armed career criminal
under the ACCA. Specifically, Petitioner argues his three
prior convictions for North Carolina breaking and entering
under N.C. Gen. Stat. § 14-54(a) are not ACCA predicates
because breaking and entering under § 14-54 is broader
than the definition for generic burglary. Petitioner contends
the definition of “building” in the N.C. statute
is broad enough to include a recreational vehicle and
therefore does not fit the definition of generic burglary
under United States v. Henriquez, 757 F.3 144 (4th
18 U.S.C. § 924(e) (“ACCA”) provides for a
mandatory minimum sentence of 15 years for any person
convicted of possessing a firearm in violation of 18 U.S.C.
§ 922(g) provided that person has three previous
convictions for a “violent felony” or a
“serious drug offense.” 18 U.S.C. §
term “violent felony” is defined in the ACCA as
“any crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delinquency
involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment
for such term if committed by an adult, that - (i) has as an
element the use, attempted use, or threatened use of physical
force against the person of another; or (ii) is burglary,
arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
(ii), which references “burglary, arson, or extortion,
involves use of explosives, ” is referred to as the
“enumerated clause.” In order to qualify as an
ACCA predicate under the enumerated clause, the elements of
the state crime cannot be broader than the elements of ...