United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
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]; Petitioner's Application to Proceed without Prepayment of Fees [Doc. 2]; Petitioner's Motion for Appointment of Counsel [Doc. 3]; and Petitioner's Motion for Leave to Amend 28 U.S.C. § 2255 Petition [Doc. 4]. No response is necessary from the Government. For the reasons that follow, Petitioner's motions will be denied and dismissed.
On December 7, 2010, Petitioner was charged in a Bill of Indictment with four counts of bank fraud, in violation of 18 U.S.C. § 1344. [Doc. 1]. Petitioner previously had been convicted of bank fraud and wire fraud in the Middle District of North Carolina, and at the time of his indictment in this District, he was under a term of supervised release for that conviction. On January 27, 2011, this Court accepted a transfer of jurisdiction over Petitioner's supervised release from the Middle District of North Carolina. [Criminal Case No. 1:11-cr-00001-MR-DLH, Doc. 1]. On January 28, 2011, the United States Probation Office filed a petition in this District contending that Petitioner had violated the terms of his supervised release by committing a new law violation - namely, the four counts of bank fraud alleged in the aforementioned Indictment. [ Id., Doc. 2]. The petition also alleged several additional violations of the terms of his supervised release, including failure to submit monthly supervision reports, failure to make court-ordered payments, and failure to report changes in employment and residence. [Id.].
On May 2, 2011, Petitioner pled guilty to the four charges of bank fraud without the benefit of a written plea agreement. [Criminal Case No. 1:10-cr-00089-MR, Doc. 27]. During the plea hearing, the Court explained that the maximum penalty for each count was thirty years' imprisonment, and the Court explained the elements of each charge. Petitioner affirmed under oath that he had discussed with his attorney how the United States Sentencing Guidelines might apply to his case, and he acknowledged that he could receive a sentence that was greater or less than the sentence recommended by the Guidelines. Petitioner also confirmed that his decision to plead guilty was voluntary and not the result of coercion, threats or any other promise from any source. Further, Petitioner averred that he had ample time to discuss his case with his attorney, including any possible defenses, and that he was entirely satisfied with the services of his attorney. [Id. ¶¶ 32, 34; Doc. 53: Tr. of Plea and Rule 11 Hr'g].
On March 15, 2012, the Court held a combined sentencing and supervised release violation hearing. The Court first confirmed that Petitioner's answers during the Rule 11 hearing were truthful and that he would answer those questions the same way during his sentencing hearing if they were posed again. Petitioner's counsel confirmed that she was in attendance during his Rule 11 hearing and that she was satisfied that Petitioner fully understood each of the questions that had been asked of him that day and that he had fully understood each of the questions asked by the Court during his sentencing hearing.
Next, Petitioner admitted that he was in fact guilty of the four charges of bank fraud; that his plea of guilty was not the result of any threat or force or promise; and that he was pleading guilty knowingly and voluntarily. The parties further stipulated that the evidence in the Presentence Report represented a sufficient factual basis to support Petitioner's guilty plea. The Court then found that Petitioner's guilty plea was knowingly and voluntarily entered and that he understood the charges, potential penalties and consequences of his plea. The Court therefore accepted Petitioner's plea and entered judgment on the bank fraud charges. [ Id., Doc. 54: Sentencing Tr. at 2-7].
The Court then turned to the allegations in the supervised release violation petition. Petitioner admitted to Violation No. 1, a Grade A violation stemming from his conduct related to the four charges of bank fraud, and Violation No. 6, a Grade C violation related to his failure to report a change in his residence. [Id. at 7-8]. The Court calculated Petitioner's Guideline range for the supervised release violations to be 18 to 24 months' imprisonment and his Guideline range on the bank fraud charges to be a term of 12 to 18 months' imprisonment.
Petitioner's counsel argued for a six- to nine-month term of community confinement on the bank fraud convictions based, in part, on Petitioner's serious health issues, including diabetes, back injuries he suffered after a fall in prison, severe headaches, and two spinal surgeries, among other ailments. Citing similar reasons, Petitioner's counsel argued for a sentence at the low end of the Guidelines range on the supervised release violations. Petitioner's counsel further noted that in the Middle District case, Petitioner had originally been sentenced to 46 months in prison following his conviction for wire fraud, bank fraud, and aggravated identity theft. While that case was on direct appeal, the parties had moved jointly to remand the case in light of Flores-Figueroa v. United States , 556 U.S. 646 (2009). On remand, Petitioner was resentenced to a term of twenty-five months' imprisonment. Because he had already served nearly thirty months at the time of his resentencing, he was immediately released and began serving his term of supervised release. Petitioner's counsel argued that because Petitioner had actually served several more months than was imposed by the Court in his sentence on remand, this Court should take that into consideration in fashioning a proper revocation sentence.
The Government opposed such a reduced sentence and noted that Petitioner's criminal history stretched back over twenty years and that imprisonment did not appear to have a deterrent effect on Petitioner's conduct. The Government asked for a high-end Guidelines sentence for both the supervised release violations and the bank fraud convictions and moved that those sentences be ordered to run consecutive to one another. [Id. at 20].
The Court sentenced Petitioner to a term of 18 months on each count of bank fraud, with such terms to be served concurrently, and a consecutive term of 18 months on the supervised release violations, with a five-year term of supervised release. [ Id., Doc. 46: Judgment in a Criminal Case]. In fashioning this sentence, the Court noted the serious nature of Petitioner's criminal conduct, in particular, defrauding banks. The Court further observed that the offenses occurred shortly after his release from prison and that such quick recidivism could not be tolerated.
Petitioner appealed both sentences. On appeal, Petitioner argued that his sentences were unreasonable because the Court did not adequately address his medical condition or his counsel's request that the two sentences "be split between incarceration and community placement." United States v. Logan, 499 F.Appx. 265, 266 (4th Cir. 2012) (unpublished). Petitioner also argued that this Court should have taken into account his "over-service" of his sentence that was imposed in the Middle District. The Fourth Circuit Court of Appeals rejected both arguments and affirmed his sentences and convictions. Id . at 266-67. Petitioner did not seek further review from the United States Supreme Court.
This § 2255 proceeding ...