United States District Court, W.D. North Carolina, Charlotte Division
MAX O. COGBURN, Jr., District Judge.
THIS MATTER is before the court on Petitioner Cecil Edward Jackson's Motion under 18 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (#1). In addition to his Habeas Petition, Mr. Jackson has filed the following pending motions: Motion to Expand the Record (#15); Motion to Supplement 2255 with New Authority (#16); Motion for Default Judgment (#17); Motion for Summary Judgment (#18). The Court directed the Government to respond on two particular issues:
(1) Whether petitioner's convictions on Counts 12 and 13 should be vacated based on alleged actual innocence under Bailey;
(2) If so, whether petitioner is entitled to be resentenced as to the remaining counts of conviction.
The Government has so responded and moved for the dismissal of the Petition. The court will allow the Motion to Expand the Record (# 15) and consider the affidavit of Mr. Purvis Roseboro. The court will also grant the Motion to Supplement (# 16) and consider such motion as a supplement to Petitioner's Response (#14).
Having considered the motions and reviewed the pleadings, the court enters the following findings, conclusions, and Order.
FINDINGS AND CONCLUSIONS
I. Procedural History
On October 12, 1990, Petitioner was convicted of numerous violations of federal laws including possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1); conspiracy to distribute cocaine base, 21 U.S.C. § 846; participation in a continuing criminal enterprise, 21 U.S.C. § 848; and, relevant to the motions at hand, thirteen counts of carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. 924(c). Mr. Jackson was sentenced to life imprisonment with a consecutive sentence of 145 years. On appeal, the Fourth Circuit Court of Appeals affirmed the sentence with the exception of the conspiracy conviction. United States v. Jackson, 953 F.2d 640 (4th Cir. 1992). The Court of Appeals affirmed the District Court's Amended Judgment against Petitioner on October 7, 1993.
Five years later in May of 1997, Petitioner filed his first Motion under 28 U.S.C. 2255 which he subsequently moved to dismiss one month later. Jackson v. United States, 3:97-cv-261, ## 1, 2 (W.D. N.C. 1997). Mr. Jackson's petition was dismissed with prejudice on June 4, 1997, and a Judgment was entered therewith. (## 5, 6). Petitioner did not appeal such dismissal with prejudice until seven years later when on February 23, 2004, he filed a Motion for Relief from "Void Judgment, " arguing that the district court lacked jurisdiction to dismiss his petition with prejudice once he had filed his dismissal. (#8). The motion was denied and Petitioner appealed the dismissal to the Fourth Circuit Court of Appeals. The Fourth Circuit agreed with Petitioner and held that Mr. Jackson's Motion to Dismiss was effectively a Notice of Dismissal which took immediate effect upon its filing and divested the court of authority to conduct further proceedings on the merits. Jackson v. United States , 245 F.Appx. 258, 259 (4th Cir. 2007). On remand, the district court entered an Order on October 17, 2007 vacating its earlier Order and dismissing Mr. Jackson's 2255 petition without prejudice (#21).
Weeks later Petitioner filed a "Motion for Relief from Order Granting Dismissal Without Prejudice Pursuant to Fed.R.Civ.Proc. Rule 59(e) and/or Rule 60(b), " in which he argued that notwithstanding the fact that he had filed a Notice of Dismissal, the court should not have dismissed his original § 2255 Petition without first giving him notice that such a dismissal could have precluded his ability to pursue collateral review in the future (#23), and requested that the court consider his § 2255 petition on its merits. While the motion was pending, Mr. Jackson petitioned the Court of Appeals for a Writ of Mandamus (#24) requesting that the Court of Appeals direct the District Court to rule on his motion. The petition was denied. In re Jackson, 330 F.Appx. 30 (4th Cir. 2009). On January 22, 2009, the District Court denied Mr. Jackson's "Motion for Relief" (# 27).
Petitioner filed the instant Motion to Vacate Under 28 U.S.C. § 2255 on June 26, 2013. Jackson v. United States, 3:13-cv-390, #1 (W.D. N.C. 2013).
Petitioner moves the court under 28 U.S.C. § 2255 to vacate his convictions of the charges contained in Counts 12 and 13 under 18 U.S.C. 924(c). His principal contention is that when his case was tried in the early 1990s, the district court's instruction as to "use" of a firearm, while proper at the time, was improper based on the Supreme Court's later decision in Bailey v. United States , 516 ...