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Barnette v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 23, 2014

UNITED STATES OF AMERICA, Respondent. Criminal Case No. 3:08-cr-00124-MR-1



THIS MATTER is before the Court on consideration of Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255 [Doc. 1]; the Government's response to Petitioner's claim for relief [Doc. 9]; and the Government's Motion for Leave to File Out of Time [Doc. 10]. For the reasons that follow, the Court finds that Petitioner is entitled to be resentenced without application of the statutory mandatory minimum of 180 months' imprisonment.


On May 29, 2008, Petitioner was indicted by the Grand Jury for the Western District of North Carolina and charged with possession with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b); possession of a firearm during and in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). [See Criminal Case No. 3:08-cr-00124, Doc. 1: Indictment]. On February 4, 2009, Petitioner pled guilty pursuant to a plea agreement to the § 922(g) count. [ Id., Doc. 21: Acceptance and Entry of Guilty Plea]. In exchange for Petitioner's guilty plea, the Government agreed to dismiss the remaining counts of the Indictment.

The U.S. Probation Office prepared a presentence report (PSR) in advance of Petitioner's sentencing hearing. In the PSR, the probation officer identified three North Carolina state convictions that are pertinent in this collateral proceeding: a 1998 conviction for breaking and entering, a 1999 conviction for breaking and entering, and a 2001 conviction for common law robbery. [ Id., Doc. 29: PSR ¶ 20]. The probation officer concluded that each of these convictions qualified as a crime of violence, and that Petitioner had therefore attained the status of an armed career criminal pursuant to United States Guidelines Manual § 4B1.4 and 18 U.S.C. § 924(e). Based on a total offense level of 31 and a criminal history category of VI, the PSR calculated a Guidelines range of 188 to 235 months' imprisonment and a statutory range of not less than fifteen years under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

On October 1, 2009, Petitioner appeared before the Court for his sentencing hearing. The Court sentenced Petitioner to a term of 180 months' imprisonment. [ Id., Doc. 34: Judgment in a Criminal Case].

Petitioner appealed to the United States Court of Appeals for the Fourth Circuit. On appeal, Petitioner's counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), stating that there were no meritorious issues for appeal but inquiring whether Petitioner was properly sentenced as an armed career criminal. The Court rejected this argument and concluded that each of Petitioner's convictions for breaking or entering qualified as "a violent felony' within the meaning of the ACCA." United States v. Barnette, 396 F.Appx. 981 (4th Cir. 2010) (per curiam) (quoting United States v. Thompson , 588 F.3d 197, 202 (4th Cir. 2009)).[1]

On April 2, 2012, Petitioner filed a pro se "motion for certificate of appeal." [Criminal Case No. 3:08-cr-00354, Doc. 49]. This Court construed the motion as a claim for relief under § 2255 and consequently provided Petitioner with notice that it intended to recharacterize the motion as a claim for relief under § 2255. [ Id., Doc. 51: Order]. Petitioner agreed to proceed under the provisions of 28 U.S.C. § 2255 [Doc. 52], and the Court ordered a response to his § 2255 motion from the Government [Doc. 53]. On January 8, 2014, the Government filed its response, along with a motion seeking to file such response two days out of time. [Doc. 10].

This matter is now ripe for disposition.


Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings" in order to determine whether a petitioner is entitled to any relief. The Court has considered the record in this matter and applicable authority and concludes that this matter can be resolved without an evidentiary hearing. See Raines v. United States , 423 F.2d 526, 529 (4th Cir. 1970).


In this § 2255 proceeding, Petitioner argues that his prior North Carolina state convictions for breaking or entering, for which he was sentenced to terms of 8 to 10 months' imprisonment respectively, no longer support his status as an armed career criminal. [Doc. 1 at 4]. The Government concedes that the Petitioner's motion has merit, and although the motion was untimely presented, the Government agrees to waive the defense of the statute of limitations to Petitioner's claims.

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), Congress has provided that a one-year period of limitation shall apply to a motion under Section 2255. The ...

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