THIS MATTER is before the Court upon Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. [Doc. No. 1].
On September 15, 2008, Petitioner pled guilty pursuant to a plea agreement to one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). [Criminal Case No. 1:08cr088, Doc. 15]. In exchange for the guilty plea, the Government agreed to recommend a sentence at the bottom of the guideline range. [Id. at Doc. 14].
The probation office prepared a Presentence Report ("PSR") prior to Petitioner's sentencing hearing and cited conduct relevant to the charged offense. [Id. at Doc. 19 (sealed)]. According to the PSR, Jones and two others arrived at a residence to settle a dispute with a man named Daniel Twomey. [Id. at ¶ 5]. Jones entered the residence, produced an assault rifle, and threatened three individuals inside, none of whom were Twomey. [Id.]. He further stated that he would harm Twomey, who was hiding elsewhere inside the residence. [Id.]. After Jones and his two friends departed, Twomey and the others alerted the Buncombe County Sheriff's Department. [Criminal Case No. 1:08cr088, Doc. 19 at ¶ 5]. Jones subsequently was arrested. [Id. at ¶ 6]. The PSR recommended, inter alia, a four-level enhancement based on his possession of a firearm in connection with the North Carolina felony offense, "Attempted Assault With Intent to Kill or Seriously Injure." [Id. at ¶ 14].
At sentencing, counsel objected to the enhancement, arguing that Petitioner's conduct at the residence was at most a misdemeanor, either communicating threats or assault by pointing a gun. [Id. at Doc. 29, pp. 4-5]. The presiding judge ultimately overruled Petitioner's objection and, on February 23, 2009, sentenced Petitioner to 46 months' imprisonment, at the bottom of the applicable Guidelines range. [Id. at Doc. 21].
Petitioner filed a direct appeal, arguing that the district court had erroneously applied the four-level enhancement based on an offense that was not a crime in North Carolina. [Id. at Doc. 32]. Upon the Government's motion, the Fourth Circuit Court of Appeals dismissed the appeal, holding that pursuant to his plea agreement, Petittioner had waived his right to appeal his sentence and that the challenged issue fell within the scope of his waiver. [Id.].
On January 26, 2011, Petitioner timely filed this Motion to Vacate, alleging that counsel was ineffective for failing to cite readily available legal authority that "Attempted Assault With Intent to Kill or Seriously Injure" is not a crime in North Carolina. [Doc. 1]. On May 26, 2011, the Government filed a Response conceding ineffective assistance of counsel on that ground. [Doc. 6].
A prisoner in federal custody may attack his conviction and sentence on the grounds that it is in violation of the Constitution or United States law, was imposed without jurisdiction, exceeds the maximum penalty, or otherwise is subject to collateral attack. 28 U.S.C. § 2255.
If the court finds that ... the sentence imposed was not authorized by law ... or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall ... resentence [the prisoner] ... or correct the sentence as may appear appropriate.
28 U.S.C. §2255(b). The Court may do so without requiring the production of the prisoner at a hearing. 28 U.S.C. §2255(c).
The Petitioner's motion is based on a claim that his attorney rendered ineffective assistance at sentencing. The Supreme Court has stated the test for determining whether a defendant ...