United States District Court, W.D. North Carolina, Statesville Division
RICHARD L. VOORHEES, District Judge.
THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. (Doc. No. 1). Petitioner also seeks alternative relief under 28 U.S.C. § 2241 or under the writs of error coram nobis and audita querela. Petitioner is represented by Steven T. Meier. For the reasons that follow, the § 2255 petition will be dismissed as untimely. Furthermore, Petitioner is not entitled to relief under any of his alternative grounds for relief.
On August 26, 2003, the Grand Jury for the Western District of North Carolina charged Petitioner, along with fifteen codefendants, with conspiracy to possess with intent to distribute at least fifty grams of crack cocaine and at least five kilograms of powder cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. (Criminal Case No. 5:03-cr-37, Doc. No. 3: Sealed Indictment; Doc. No. 4: Information Pursuant to 21 U.S.C. § 841(b)). On March 30, 2005, Petitioner entered into a written plea agreement in which he agreed to plead guilty to the drug conspiracy charge. ( Id., Doc. No. 293: Plea Agreement). As part of the agreement, Petitioner waived his right to challenge his conviction and sentence in a direct appeal or collateral attack, with the exception of claims of ineffective assistance of counsel or prosecutorial misconduct. (Id. at 4-5).
Consistent with his plea agreement, Petitioner pled guilty before a federal magistrate judge in a hearing held on May 2, 2005, and conducted pursuant to Rule 11 of the Federal Rules of Criminal Procedure. ( Id., Doc. No. 303: Acceptance and Entry of Guilty Plea). Petitioner acknowledged that he was, in fact, guilty of the drug conspiracy offense and affirmed that he understood he was expressly waiving the right to challenge his conviction and sentence in a post-conviction proceeding. (Id. at 4). At the conclusion of the hearing, the magistrate judge found that Petitioner's plea was knowingly and voluntarily made and accepted it. (Id. at 5).
In preparation for sentencing, the probation officer prepared a presentence investigation report, calculating a guidelines range of 292 to 365 months in prison, based on a total offense level of 35 and a criminal history category of VI. See ( Id., Doc. No. 373: Motion for Downward Departure). In calculating the guidelines range, the probation officer determined that Petitioner qualified as a career offender under § 4B1.1 of the guidelines in light of Petitioner's two prior felony convictions for a crime of violence. ( Id., PSR at 10). Specifically, Petitioner had a 1992 conviction for assault on a female in Burke County and a 1993 conviction for assault on a government official in Wayne County. (Id. at 11-12).
Before sentencing, the Government filed a motion for downward departure, pursuant to § 5K1.1 of the guidelines, recommending a sentence of 216 months in light of Petitioner's substantial assistance. ( Id., Doc. No. 373 at 3). At sentencing, this Court granted the Government's motion and departed downward even further, sentencing Petitioner to 196 months in prison. ( Id., Doc. No. 377: Judgment). This Court entered judgment on May 26, 2006, and Petitioner did not appeal. On February 17, 2009, this Court granted Petitioner's first motion under 18 U.S.C. § 3582, reducing Petitioner's sentence to 176 months in prison in light of retroactively applicable amendments to the crack cocaine guidelines. ( Id., Doc. No. 479: Order). On May 10, 2012, this Court denied Petitioner's second § 3582 motion, concluding that his amended offense level following additional retroactive amendments to the crack cocaine guidelines remained unchanged due to his career-offender status. ( Id., Doc. No. 578: Order).
Petitioner filed the pending motion to vacate through counsel on August 17, 2012. In his motion, Petitioner contends that he is entitled to relief under the Fourth Circuit's en banc decision in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011). Specifically, Petitioner contends that his two assault convictions no longer qualify as felonies in light of Simmons. On December 2, 2013, this Court ordered the Government to respond, and the Government filed its brief in response on January 31, 2014. (Doc. Nos. 5; 7).
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 argument presented by Petitioner 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).
A. Relief under 28 U.S.C. § 2255
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the "AEDPA"). Among other things, the AEDPA amended 28 U.S.C. § 2255 to include a one-year statute of limitations period for the filing of a ...