United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
WILLIAM L. OSTEEN, Jr., District Judge.
Petitioner, Richard Earl Williams, has filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 13) and a Supplemental Motion Pursuant to the Fourth Circuit Decision in Miller v. United States (Doc. 25). The United States has filed a response (Doc. 20) requesting that the motion be denied. Petitioner has filed a reply (Doc. 23), and the matter is now ripe for ruling. For the following reasons, this court finds the motion should be denied.
Petitioner was indicted in this court on December 19, 2011, and charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Doc. 1.) Petitioner pled guilty to the Indictment on March 5, 2012 pursuant to a written plea agreement (Doc. 9). A written factual basis (Doc. 10) was filed and accepted by the court at the time of the entry of the plea. Petitioner and his counsel indicated that there were no objections to the factual basis. (See Minute Entry dated 3/5/2012.)
The factual basis recites that
Williams was previously convicted on July 18, 2006, in the Superior Court of Durham County, Durham, North Carolina, of a crime punishable by imprisonment for a term exceeding one year, that is, attempted assault with a deadly weapon inflicting serious injury. Williams was sentenced to a term of 17 months to 21 months imprisonment. At the time of the instant offense, Williams's conviction had not been expunged or set aside, nor had he been pardoned or had his civil rights been restored within the meaning of 18 U.S.C. Section 921(a)(20).
(Factual Basis (Doc. 10) at 2-3.)
Sentencing was set for June 8, 2012, and a presentence report was prepared.
The probation officer determined that Petitioner's criminal history category was a IV and included the July 18, 2006 state conviction twice in the presentence report ("PSR"): once in the criminal history category (PSR ¶ 27), and once in the offense conduct listing the conviction as an element of the § 922(g)(1) offense (PSR ¶ 3.)
Sentencing was held on June 8, 2012. Both counsel for Petitioner and Petitioner agreed there were no objections to the presentence report. Following the sentencing hearing, this court imposed judgment which included, inter alia, a term of imprisonment of 52 months followed by 3 years of supervised release. (Judgment (Doc. 12) at 2-3.)
Petitioner has now moved to set aside and dismiss the Indictment on one ground, stated by Petitioner as follows: "Counsel was ineffective for failing to move district court to dismiss the indictment." (Mot. to Vacate (Doc. 13) at 4.) Petitioner moves that his conviction be vacated and that he be released. (Id. at 12.)
Petitioner argues that the state conviction - attempted assault with a deadly weapon inflicting serious injury - is not a criminal offense under state law and, therefore, cannot be alleged as an element of his 18 U.S.C. § 922(g)(1) offense. (See Mem. Br. in Supp. (Doc. 14) at 4.) In other words, Petitioner contends that he "has no qualifying prior felony convictions that would support a violation of 18 U.S.C. § 922(g)(1)." (Id. at 7.) The United States, in its response, concedes that North Carolina courts have found that "an attempt to commit an assault is not an offense in North Carolina." (Resp't Resp. to Mot. under 28 U.S.C. § 2255 ("Resp't Resp.")(Doc. 20) at 2.) Nevertheless, the United States contends that relief under 28 U.S.C. § 2255 should be denied.
The Government's concession is to a certain degree misconstrued by Petitioner. (Pet'r's Reply to Resp't Resp. to Mot. under 28 U.S.C. § 2255 (Doc. 23) at 2)("Respondent concedes that an attempt to commit an assault is not an offense in North Carolina'...."). The United States' concession is that certain case holdings exist, not ...