United States District Court, M.D. North Carolina
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, Magistrate Judge.
Petitioner Jimmy Lee Ford, Jr., a federal prisoner, has brought what the Court docketed as a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [1:99CR364-1, Doc. #49], as well as an Amended Motion [Doc. #51]. On February 24, 2000, Petitioner was convicted one count of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (Count Two) and of one count of possessing a firearm following a felony conviction in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count Three). Based on an Information of Prior Conviction filed under 21 U.S.C. § 851, he was sentenced to the statutory mandatory sentence of life imprisonment. Petitioner filed a Motion [Doc. #31] under § 2255, which was dismissed. He later filed the present Motion [Doc. #49] and Amended Motion [Doc. #51].
Petitioner raises a single claim for relief in his Motion, which is based on the decision of the Court of Appeals for the Fourth Circuit in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011). The Government filed a Response [Doc. #65], conceding that Petitioner's conviction under § 922(g) should be vacated because the predicate North Carolina conviction charged in Count Three would not support his conviction under § 922(g) as a felon in possession of a firearm. Specifically, the Government concedes that, using the analysis set out in Simmons, Petitioner did not face more than a year of imprisonment for the prior conviction listed in the Indictment as supporting the § 922(g) charge. It agrees that the conviction should be vacated.
The Government also notes that the Court would lack jurisdiction to grant relief under § 2255 because Petitioner filed a previous § 2255 Petition and has not received certification from the Court of Appeals for the Fourth Circuit to file a second or successive motion, as required by 28 U.S.C. § 2255(h). However, the Government takes the position that Petitioner's Motion can be accepted as a Petition under 28 U.S.C. § 2241 and granted by this Court. The Government thus necessarily concedes that 28 U.S.C. § 2255 is "inadequate or ineffective to test the legality of [Petitioner's] detention" and that habeas corpus relief is available instead under 28 U.S.C. § 2241. See 28 U.S.C. § 2255(e); In re Jones , 226 F.3d 328, 333 (4th Cir. 2000) (concluding that "§ 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law"). In the Response [Doc. #65], the Government asks that the Court vacate Petitioner's conviction as to Count Three of the indictment.
The Government has further affirmatively waived any statute of limitations defense that might otherwise apply. In addition, although venue is ordinarily proper on a § 2241 Petition in the district where the Petitioner is incarcerated, the Government has raised no objection to venue, and agrees that this case should proceed in this District. See Kanai v. McHugh , 638 F.3d 251, 258 (4th Cir. 2011) (holding that this location limitation is "waived if not timely asserted"). The parties thus agree that Petitioner's Motion should be considered under 28 U.S.C. § 2241 and that pursuant to the § 2241 Petition, Petitioner's sentence and conviction on Count Three should be vacated. The Court has reviewed the state court documents reflecting Petitioner's prior convictions listed in Count Three of the Indictment, and the Court notes that Petitioner's prior conviction was a Class I felony with a prior record level of II. The maximum sentence he faced for those offenses under North Carolina law, as analyzed in Simmons, was less than 12 months. See N.C. Gen. Stat. § 15A-1340.17(c) and (d) (for offenses committed between Dec. 1, 1995 and Nov. 30, 2009). Therefore, having reached this conclusion and in light of the agreement of the parties, this Court will recommend that Petitioner's Motion be granted and that his conviction be vacated as to Count Three.
Petitioner's conviction on Count Two of the indictment is not affected by Simmons or the Government's concession. However, as the Government notes, the Information of Prior Conviction that led to Petitioner's life sentence on that count is no longer valid under Simmons. Therefore, it concedes that Petitioner should be resentenced as to that Count. In his Reply, Petitioner agrees and requests "a new sentencing hearing with respect to Count Two." Trial courts have "broad and flexible power" in fashioning a remedy when granting relief under § 2255, including the option of entering a corrected judgment or conducting a full resentencing when some counts are vacated but others remain. See United States v. Hadden , 475 F.3d 652, 669-72 (4th Cir 2007). In this case, the Court has already determined that relief is available with respect to the conviction in Count Three, as discussed above. Having made that determination, and in light of the Court's broad discretion in fashioning a remedy and the parties' joint request for resentencing on the remaining Count, the Court concludes that resentencing is appropriate as to Count Two.
IT IS THEREFORE RECOMMENDED that Petitioner's Motion and Amended Motion to Vacate, Set Aside or Correct Sentence [Doc. #49, 51] be GRANTED, that the Judgment [Doc. #26] be VACATED, that Count Three of the Indictment [Doc. #3] be DISMISSED, and ...