United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
JAMES E. GATES, Magistrate Judge.
On 19 April 2012, petitioner Roselio Garcia-Aguilera ("petitioner") filed a petition (D.E. 33), pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence ("§ 2255 petition"). On 26 April 2012, the court directed the government to file an answer or other appropriate response to the petition. (D.E. 34). On 6 June 2012, the government filed a motion to dismiss the petition (D.E. 36) and a memorandum in support (D.E. 37).
Also before the court are: (1) petitioner's motion to construe his § 2255 petition as one brought pursuant to 28 U.S.C. § 2241 ("§ 2241 petition"), which was included in his response (D.E. 39) to the government's motion to dismiss; and (2) his motion (D.E. 40) for an order confirming that his § 2255 petition will not be counted as a first petition under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255(e). The government did not file a response to either of these motions.
Each of the above-described matters was referred to the undersigned for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings. For the reasons stated herein, it will be recommended that the government's motion to dismiss be granted, the petition be dismissed, and the motions to construe the § 2255 petition as a § 2241 petition and to count the § 2255 petition as petitioner's first be denied.
On 22 June 2010, petitioner was charged by criminal complaint (D.E. 1) with illegal reentry by an aggravated felon pursuant to 8 U.S.C. § 1326(a) and (b)(2). He was subsequently indicted (D.E. 13) for this offense on 16 July 2010. On 13 September 2010, petitioner pled guilty (D.E. 17) without a plea agreement, and on 15 December 2010 was sentenced to 96 months' imprisonment and 3 years' supervised release. (J. (D.E. 23) 1-3).
Petitioner appealed his sentence, asserting that it was substantively unreasonable, and on 1 August 2011, the Fourth Circuit affirmed the district court's judgment. S ee United States v. Garcia-Aguilera , 441 Fed.Appx. 161, 162 (4th Cir. 2011). Thereafter, petitioner filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on 5 December 2011. United States v. Garcia-Aguilera , 132 S.Ct. 834 (2011).
On 19 April 2012, petitioner filed the § 2255 petition now before the court. In response to it, the government filed a motion to dismiss asserting, inter alia , that petitioner's claim does not fall within the narrow range of claims that can be brought pursuant to § 2255. (Gov.'s Memo. 3-4). In his response to the motion to dismiss, petitioner concedes that his claim is not one that should be brought under § 2255, but argues that it can be brought under § 2241. (Pet.'s Resp. 1-2). Accordingly, petitioner included in his response a motion requesting that this court construe his § 2255 petition as one arising under § 2241 and that this case be transferred to the proper jurisdiction for a § 2241 petition, i.e. , the jurisdiction in which he is incarcerated. See 28 U.S.C. § 2241(a) (providing that a writ of habeas corpus may be granted by a district court in the district where petitioner is restrained). In light of his proposed conversion of the § 2255 petition to a § 2241 petition, petitioner filed a motion requesting that the § 2255 petition not be counted as his first under the AEDPA in the event that he decides to file a § 2255 petition in the future.
I. Standard of Review for § 2255 Petitions
Pursuant to 28 U.S.C. § 2255, a prisoner may seek correction or vacation of a sentence on the grounds that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Rule 4(b) of the Rules Governing § 2255 Proceedings provides that the courts must promptly review § 2255 petitions along with "any attached exhibits, and the record of prior proceedings" to determine if the petitioner is entitled to any relief. Id . If the court concludes that the petitioner is not entitled to relief, it must dismiss the petition. Id . Otherwise, it must direct the United States Attorney to file a response. Id . Generally, an evidentiary hearing is required under 28 U.S.C. § 2255 "[u]nless it is clear from the pleadings, files, and records that the prisoner is not entitled to relief." United State s v. Rashaad , 249 Fed.Appx. 972, 973 (4th Cir. 2007) (citing Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970)).
II. Absence of Need for an Evidentiary Hearing
The court has considered the record in this case and applicable authority to determine whether an evidentiary hearing is needed to resolve the matters before the court. The court finds that the existing record clearly shows that petitioner is not entitled to relief on his claims and that an evidentiary ...