Clark v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:22-cv-00216-MR

(CRIMINAL CASE NO. 1:18-cr-00017-MR-WCM-1)

MICHAEL DEWAYNE CLARK, )

)

Petitioner, )

)

vs. ) ORDER

)

UNITED STATES OF AMERICA, )

)

Respondent. )

________________________________ )

THIS MATTER is before the Court on the Petitioner’s Pro Se Motion

under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a

Person in Federal Custody, [CV Doc. 1],1 and Petitioner’s letter [CV Doc. 3],

which the Court will construe as a motion to amend Petitioner’s motion to

vacate.

I. BACKGROUND

Petitioner was charged in the underlying criminal case with one count

of possession of an unregistered shotgun with a barrel length less than 18

1 Citations to the record herein contain the relevant document number referenced

preceded by either the letters “CV,” denoting that the document is listed on the docket in

the civil case file number 1:22-cv-00216-MR, or the letters “CR,” denoting that the

document is listed on the docket in the criminal case file number 1:18-cv-00017-MR-

WCM-1.

inches, all in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Count One);

and one count of being felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1) (Count Two). [CR Doc. 1: Indictment].

Petitioner pled guilty pursuant to a written Plea Agreement to Count

Two. [CR Doc. 14: Plea Agreement]. The Government agreed to dismiss

Count One after acceptance by the Court of Petitioner’s plea. [Id. at 1]. By

signing the written Plea Agreement, Petitioner expressly waived any

appellate and post-conviction rights except for claims of ineffective

assistance of counsel or prosecutorial misconduct. [Id. at 5].

The probation office prepared a Presentence Investigation Report

(“PSR”) in advance of sentencing. [CR Doc. 24]. The base offense level was

22 and there were no adjustments to that level. [Id. at ¶¶ 19, 22]. The offense

level was enhanced under Chapter Four because the offense of conviction

was a violation of 18 U.S.C. § 922(g), and Petitioner had at least three prior

convictions for a violent felony or serious drug offense. These included one

1992 Armed Robbery conviction in South Carolina and three convictions for

Felony Breaking and/or Entering in North Carolina.2 [CR Doc. 24 at ¶ 25;

2 The draft PSR also included a South Carolina conviction for Assault and Battery, High

and Aggravated Nature. [CR Doc. 21 at ¶ 25]. Petitioner objected to the use of this

conviction as a violent felony predicate for the purposes of ACCA because the Fourth

Circuit “has previously held that the South Carolina offense of assault and battery with a

high and aggravated nature is not categorically an ACCA violent felony.” [CR Doc. 23 at

1-2 (citing United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013))]. This objection

see id. at ¶¶ 37, 41-43]. The Petitioner’s enhanced offense level was 34.

[Id.]. Three total points were deducted for acceptance of responsibility. [Id.

at ¶¶ 26, 27]. Accordingly, Petitioner’s total offense level was 31. [Id. at ¶

28]. Petitioner’s criminal history category was VI. [Id. at ¶ 51]. The resulting

guidelines imprisonment range was 188 to 235 months, and the statutory

range was 15 years to life. [Id. at ¶¶ 88, 89].

The Court sentenced Petitioner to a term of imprisonment of 188

months to run consecutive to any undischarged term of imprisonment by any

state or federal court. [CR Doc. 27: Judgment]. On May 10, 2019, Petitioner

appealed the judgment to the Fourth Circuit Court of Appeals on the ground

that the Court’s use of the breaking and entering convictions to enhance his

sentence was unconstitutional. [CR Doc. 29: Notice of Appeal]. The Fourth

Circuit appointed counsel for Petitioner and counsel filed an Anders brief,

stating there were no meritorious issues for appeal but questioning whether

Petitioner’s sentence was properly enhanced under the ACCA. [CR Doc. 46

at 2]. On appeal, Petitioner filed pro se supplemental briefs challenging his

ACCA designation, asserting that his ACCA enhancement violates double

jeopardy, claiming that his conviction is a violation of his right to bear arms,

was accepted in the final PSR and, thus, this conviction was not used as an ACCA

predicate offense. [See Doc. 24 at ¶ 25 and Doc. 24 at 24].

and suggesting that his conviction was invalidated by Rehaif v. United

States, 139 S.Ct. 2191 (2019). On February 24, 2022, the Fourth Circuit

determined that this Court “correctly calculated Clark’s Guidelines range,

including his armed career criminal enhancement.” [Id. at 4]. The Fourth

Circuit also rejected Petitioner’s pro se arguments. [See id. at 2-3, 5 n.*].

On July 29, 2019, while his appeal was pending, Petitioner filed a

motion to vacate pursuant to 28 U.S.C. § 2255. [Civil Case No. 1:19-cv-236-

MR, Doc. 1]. Generally in keeping with his issues on appeal, Petitioner

challenged his ACCA enhancement, claiming breaking and entering is a

nonviolent crime; claimed that his conviction is a violation of his right to bear

arms; that his ACCA enhancement violates double jeopardy; and that his

“armed robbery convictions of 1992” were not violent crimes. [Id., id. at 4-5,

7-8]. The Court denied and dismissed his motion without prejudice, finding

it premature. [Id., Doc. 2].

On September 26, 2022, Petitioner filed the pending motion to vacate.

[CV Doc. 1]. He argues that, under Mathis v. United States, 136 S.Ct. 2243

(2016); United States v. Stitt, 139 S.Ct. 399 (2018); and United States v.

Dodge, 963 F.3d 379 (4th Cir. 2020); the ACCA does not apply to enhance

his sentence and that his appellate counsel was ineffective for “failing to seek

hearing or rehearing en banc during [Petitioner’s] direct appeal in light of

Dodge, supra, Id. at 384.” [CV Doc. 1 at 4]. Petitioner claims his appellate

attorney should have argued that Petitioner’s North Carolina breaking and

entering convictions do not qualify as ACCA predicates. Petitioner claims he

was prejudiced because the ACCA increased his mandatory minimum

sentence from zero to 15 years in prison. [Id.]. Petitioner also asks the Court

to issue a Certificate of Appealability “because reasonable jurists would

debate the question presented by Dodge on hearing en banc.” [CV Doc. 1

at 5].

Before the Court conducted its initial screening of Petitioner’s motion

to vacate, he filed a letter in this matter asking the Court to combine

Petitioner’s dismissed July 2019 motion to vacate with the instant motion “for

review and appeal purposes.” [CV Doc. 3]. The Court will construe this letter

as a motion to amend Petitioner’s motion to vacate.

II. 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).

III. DISCUSSION

Petitioner raises two claims in his motion to vacate. Specifically, he

argues that: (1) Petitioner’s prior North Carolina breaking and entering

convictions under N.C. Gen. Stat. § 14-54(a) were improperly used as

predicates under the Armed Career Criminal Act to enhance his sentence;

and (2) Petitioner’s appellate attorney provided ineffective assistance of

counsel “for failing to seek hearing or rehearing en banc during [Petitioner’s]

direct appeal in light of Dodge” to argue that North Carolina breaking and

entering does not qualify as an ACCA predicate.

A. ACCA Enhancement

Under 28 U.S.C. § 2255, a petitioner is entitled to relief when his

original sentence “was imposed in violation of the Constitution or laws of the

United States, … or that the sentence was in excess of the maximum

imposed by law….” 28 U.S.C. § 2255(a).

Petitioner contends that his three predicate convictions for felony

breaking and entering in North Carolina, which were relied upon to enhance

his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. §

924(e), were for non-violent crimes and should not have been used to

enhance his sentence under the ACCA.

The ACCA provides significantly higher penalties for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g), when the felon

has previously been convicted of three or more “predicate offenses.” United

States v. Mungro, 754 F.3d 267, 268 (4th Cir. 2014). These predicate

offenses include violent felonies and serious drug offenses. Id. (citing 18

U.S.C. § 924(e)(1)). Violations of § 922(g) are normally punishable by no

more than ten years’ imprisonment. Id. (citing 18 U.S.C. § 924(a)(2)). Under

the ACCA, this sentence increases to a mandatory minimum of fifteen years’

imprisonment. Id. (citing 18 U.S.C. § 924(e)(1)).

Petitioner’s status as an armed career criminal is based on three prior

convictions for felony breaking and/or entering in North Carolina under N.C.

Gen. Stat. § 14-54(a) and one prior conviction for armed robbery in South

Carolina. [CR Doc. 24 at ¶ 25]. Petitioner contends that North Carolina

breaking and entering is not a predicate crime of violence under the ACCA.

Petitioner’s argument, however, is foreclosed by United States v.

Mungro, 754 F.3d at 268. The ACCA defines “violent felony” to include,

among other things, any offense that “is burglary.” 18 U.S.C. §

924(e)(2)(B)(ii). Therefore, any burglary offense is an ACCA predicate

offense. Mungo, 754 F.3d at 268. In Mungro, the Fourth Circuit held that

“breaking and entering” in violation of N.C. Gen. Stat. § 14-54(a) constitutes

a generic burglary and, therefore, a defendant’s prior convictions for this

crime constituted predicate offenses under the ACCA. Contrary to

Petitioner’s argument, this result is unchanged by Dodge, Mathis, or Stitt.

In Mathis and Stitt, the Supreme Court focused, in relevant part, “on

whether there was a distinction between ‘vehicles,’ even if used for

temporary accommodation, and ‘buildings’” in determining whether certain

state burglary statutes fall outside the definition of generic burglary

established in Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143

(1990).3 Dodge, 963 F.3d at 384 (citing Mathis, 136 S.Ct. at 2250; Stitt, 139

S.Ct. at 406-07).

“[B]oth Mathis and Stitt relied on Taylor’s definition of generic burglary,

as did [the Fourth Circuit] in Mungro, and neither purported to articulate a

new test for assessing the locational element of that definition.” Id. The

Fourth Circuit in Dodge, therefore, concluded that neither Mathis nor Stitt “is

a superseding contrary decision of the Supreme Court overruling Mungro’s

explicit holding that North Carolina breaking and entering qualifies as a

violent felony for ACCA purposes.” 963 F.3d at 384. As such, Mungro

3 In Taylor, generic burglary was defined to be the “unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit a crime.” 495 U.S. at

598, 110 S.Ct. 2143.

remains the law and North Carolina breaking and entering remains a proper

ACCA predicate.

Moreover, Petitioner already advanced his ACCA argument on direct

appeal and it was rejected. Petitioner is not entitled to a sentence reduction

under Section 2255 based on issues that have already been determined on

direct appeal. United States v. Walker, 299 Fed. App’x 273, 276 (4th Cir.

2008) (“Absent a change in the law, a prisoner cannot relitigate in collateral

proceedings an issue rejected on direct appeal.”); see Kaufman v. United

States, 394 U.S. 217, 227 n. 8 (1969). Here, the Fourth Circuit rejected

Petitioner’s argument that his sentence was improperly enhanced under the

ACCA and concluded that this Court “correctly calculated [Petitioner’s]

Guidelines range, including his armed career criminal enhancement.” United

States v. Clark, No. 19-4332, 2022 WL 563257, at *1, *2 (4th Cir. Feb. 24,

2022).

The Court notes that the other claims Petitioner seeks to advance from

his previously dismissed motion to vacate are without merit.4 The Second

Amendment to the United States Constitution does not protect a convicted

4 Because Petitioner’s motion to amend, [CV Doc. 3], was filed within one year of final

judgment, see 28 U.S.C. § 2255(f), the Court will allow Petitioner to amend his motion to

vacate to include the claims from his previously dismissed, premature motion to vacate,

[see CV Doc. 3-1].

felon’s “right” to bear arms. See United States v. Mahin, 668 F.3d 119, 123

(4th Cir. 2012) (collecting cases declining to overturn on Second Amendment

grounds criminal convictions under 18 U.S.C. § 922(g)). Further, the Double

Jeopardy Clause does not prohibit the consideration of a defendant’s prior

convictions for purposes of enhancing his sentence for a subsequent crime.

United States v. Richardson, 724 Fed. App’x 193, 195 (4th Cir. 2018)

(“[E]nhancement of a sentence does not constitute new jeopardy or

additional punishment for [defendant’s] earlier offenses…. In any event,

there is no double jeopardy violation when two separate sovereigns—the

United States and the state of North Carolina—prosecute an individual for

the same offense.”) (internal quotations and citations omitted). Finally,

Petitioner’s 1992 South Carolina armed robbery conviction was properly

considered an ACCA predicate, see United States v. Weston, 681 Fed. App’x

235, 237, n.1 (4th Cir. 2017) (concluding that South Carolina strong arm

robbery and armed robbery are violent felonies under ACCA’s force clause),

and Petitioner had three qualifying North Carolina breaking and entering

convictions, in any event.

As such, Petitioner is not entitled to relief under Section 2255 based

on any alleged errors at sentencing.

B. Ineffective Assistance of Counsel

The Sixth Amendment to the U.S. Constitution guarantees that in all

criminal prosecutions, the accused has the right to the assistance of counsel

for his defense. See U.S. CONST. amend. VI. To show ineffective

assistance of counsel, Petitioner must first establish a deficient performance

by counsel and, second, that the deficient performance prejudiced him. See

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this

determination, there is “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Id. at 689; see

also United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010). Furthermore,

in considering the prejudice prong of the analysis, the Court “can only grant

relief under . . . Strickland if the ‘result of the proceeding was fundamentally

unfair or unreliable.’” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998)

(quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). Under these

circumstances, the petitioner “bears the burden of affirmatively proving

prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the

petitioner fails to meet this burden, a “reviewing court need not even consider

the performance prong.” United States v. Rhynes, 196 F.3d 207, 232 (4th

Cir. 1999), opinion vacated on other grounds, 218 F.3d 310 (4th Cir. 2000).

Courts ordinarily find ineffective assistance for failure to raise claims

on appeal only when “ignored issues are clearly stronger than those

presented.” Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746 (2000)

(internal citation and quotation marks omitted). Appellate counsel is not

required to assert all non-frivolous issues on appeal. Griffin v. Aiken, 775

F.2d 1226, 1235 (4th Cir. 1985). Rather, “it is the hallmark of effective

appellate advocacy” to winnow out weaker arguments and to focus on more

promising issues. Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661

(1986). Thus, “[a] decision with respect to an appeal is entitled to the same

presumption that protects sound trial strategy.” Pruett v. Thompson, 996

F.2d 1560, 1568 (4th Cir. 1993). The petitioner still bears the burden to show

that there is a reasonable probability that but for counsel’s failure to raise an

issue on appeal, the result of the proceeding would have been different, i.e.,

he would have prevailed on appeal. See Robbins, 528 U.S. at 285-86, 120

S.Ct. 746.

Here, Petitioner argues that his appellate attorney was constitutionally

deficient for not seeking a rehearing en banc during Petitioner’s appeal to

argue that North Carolina breaking and entering does not qualify as an ACCA

predicate under Dodge. The Petitioner’s argument is without merit. Dodge

was decided nearly two years before Petitioner’s appeal and did not change

the outcome of Petitioner’s appeal. Rather, as provided above, Dodge

affirmed that North Carolina breaking and entering is a proper ACCA

predicate even post-Mathis and -Stitt. As such, there would have been no

reason for the Fourth Circuit to grant a rehearing under Dodge. Thus, there

is no reasonable probability that Petitioner would have prevailed on his

appeal had his appellate attorney argued Dodge. See Robbins 528 U.S. at

285.

Petitioner, therefore, is not entitled to relief under Section 2255 based

on ineffective assistance of counsel.

The Court will, therefore, deny and dismiss Petitioner’s Section 2255

Motion to Vacate.

IV. CONCLUSION

Having concluded that Petitioner is not entitled to relief, the Court will

deny and dismiss Petitioner’s Section 2255 Motion to Vacate.

The Court further finds that 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 § 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. at 484-85. 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 Petitioner’s Motion to Vacate, Set

Aside or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1] is DENIED and

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules

Governing Section 2254 and Section 2255 Cases, this Court declines to

issue a certificate of appealability.

IT IS SO ORDERED.

Signed: November 14, 2022

Ste ee

Chief United States District Judge AS

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