United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM OF DECISION and ORDER
MAX O. COGBURN, Jr., District Judge.
THIS MATTER is before the court on petitioner's pro se Motion for Clarification on Whether Sentence is to Run Concurrent and his counsel's Motion to Reconsider Sentence, both filed in the underlying criminal action rather than this Section 2255 proceeding. The court has transferred both motions to this Section 2255 proceeding and has directed the government to respond. Upon consideration of the motions, the record, and the government's response, the court dismisses the action without prejudice as petitioner has presented a successive petition without first securing permission from the Court of Appeals for the Fourth Circuit.
FINDINGS and CONCLUSIONS
I. Sentencing Background
Petitioner was convicted on December 1, 1995, after a trial by jury, which returned its Verdict of guilty as to counts 1, 4, 5, and 6 of the Bill of Indictment. Such conviction included conspiracy to possess with intent to distribute powder and crack cocaine within 1, 000 feet of a protected area (a violation of 21 U.S.C. §§ 841(a)(1), 860, and 846), possession with intent to distribute crack and powder cocaine and aiding and abetting the same (in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2), possession of a firearm during and in relation to a drug trafficking offense (a violation of 18 U.S.C. § 924(c)(1)), and possession of a firearm by a convicted felon (a violation of 18 U.S.C. § 922(g)(1)). Prior to trial, the government filed a Bill of Information pursuant to 21, United States Code, Section 851, providing petitioner with notice that the government intended to rely on his prior felony drug conviction at sentencing.
On May 20, 1996, a sentencing hearing was held and petitioner was sentenced to life in prison, plus a consecutive term of five years. Judgment was entered June 21, 1996. Petitioner appealed from such Judgment and the action was remanded by the Court of Appeals for the Fourth Circuit on April 27, 1998, for resentencing. A resentencing hearing was held December 14, 1998, and petitioner was again sentenced to life imprisonment followed by a consecutive term of five years. The first Amended Judgment was entered December 18, 1998.
On June 29, 2001, petitioner filed his first Motion to Vacate under Section 2255. This court dismissed that motion on October 31, 2001, as untimely filed under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Petitioner appealed that determination to the Court of Appeals for the Fourth Circuit, which denied the certificate of appealability and dismissed the appeal. Dean v. United States, No. 02-6070 (4th Cir. Mar. 26, 2006).
Based on Amendment 706 to the United States Sentencing Guidelines (commonly known as "Crack I"), this court entered an Order in accordance with 18 U.S.C. 3582 on September 17, 2009, reducing petitioner's aggregate sentence from life plus five years to a total aggregate sentence of 420 months. On March 17, 2011, the criminal action was reassigned to the undersigned.
On February 2, 2012, a new Presentence Investigation Report was filed based on Amendment 750 ("Crack II"). That PSR reported that "[a]pplication of Amendment 750 provides no change in the guideline range." PSR (#348) at 2. The government opposed any further reduction under Amendment 706, Response (#349), and the court entered an Order (#350) denying relief under Crack II. Within 28 days of entry of that Order, petitioner filed a counseled Motion to Vacate (#351) that Order, which this court allowed, and provided petitioner an opportunity to respond or object to the Crack II PSR.
After considering petitioner's objections, the revised PSR, and the Response in Opposition of the United States, this court further reduced petitioner's sentence as to Counts 1 and 4 (the only counts impacted by Amendments 706 and 750) from 360 months to 324 months. Such reduction left petitioner with an aggregate sentence of 384 months, inasmuch as the 60 month consecutive sentence as to Count 5 was unaffected by either Crack I or Crack II. An Order consistent with such determination was entered on August 17, 2012. Order (#367).
II. Procedural History of Present Motion
In an undated letter to the court, postmarked November 15, 2013, and filed in this court November 18, 2013, petitioner sought relief from this court's latest amended Judgment by requesting that this court clarify whether he was to receive credit for time served in the custody of the State of North Carolina based on conviction of an offense he contends was part of the offense conduct herein. The court construed the pro se motion as a second or successive Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, and construed his letter in a light most favorable to him as asserting the following claim:
I. Petitioner received ineffective assistance of counsel at resentencing when counsel failed to raise the issue of running petitioner's federal sentence ...