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Fleming v. United States

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

July 28, 2014

TICO LOMBARD FLEMING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 1:07-cr-00033-MR-DLH-4.

MEMORANDUM OF DECISION AND ORDER

FRANK G. JOHNS, District Judge.

THIS MATTER is before the Court on an initial review of Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence, which is filed pursuant to 28 U.S.C. § 2255. [Doc. 1]. For the reasons that follow, Petitioner's Section 2255 motion will be dismissed as successive.

I. BACKGROUND

On December 3, 2007, Petitioner was sentenced by the Honorable Lacy H. Thornburg to a term of 210 months' imprisonment following Petitioner's conviction on one count of conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1). [Criminal Case No. 1:07-cr-00033, Doc. 194: Judgment in a Criminal Case]. Petitioner did not appeal from this judgment.

Instead, on November 14, 2008, Petitioner filed a timely § 2255 motion and therein raised three claims for ineffective assistance of counsel[1] and a claim that his guilty plea was not knowingly and voluntarily entered. Notably, Petitioner did not seek to vacate his conviction; rather, he merely sought to be resentenced without the career offender designation. [Civil Case No. 1:08-cv-00250-MR, Doc. 1-2: Memorandum at 30]. The Court rejected each of Petitioner's claims and dismissed his § 2255 motion. [ Id., Doc. 19: Memorandum of Decision and Order]. On May 1, 2012, the Fourth Circuit dismissed Petitioner's appeal. United States v. Fleming, 472 F.Appx. 165 (4th Cir. 2012) (unpublished). Petitioner filed the present motion by placing it in the prison mailing system on July 15, 2014. [Doc. 1].

II. STANDARD OF REVIEW

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).

III. DISCUSSION

Petitioner contends that he is entitled to relief from his sentence because he no longer qualifies as a career offender, citing the Fourth Circuit's en banc decision in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011), which was held to apply retroactively on collateral review in Miller v. United States , 735 F.3d 141 (4th Cir. 2013), and the Fourth Circuit's decision in Whiteside v. United States , 748 F.3d 541, reh'g en banc granted, No. 13-7152, 2014 WL 3377981 (4th Cir. July 10, 2014).

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides, in relevant part that "[a] second or successive motion [under Section 2255] must be certified as provided in Section 2244 by a panel of the appropriate court of appeals to contain -

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

The Court notes that Petitioner has already filed an unsuccessful § 2255 motion, and he has provided no evidence that he has obtained the necessary authorization to file this second § 2255 in which he challenges the same judgment. Further, after examining Petitioner's § 2255 motion, the Court finds Petitioner's reliance on Miller v. United States , 735 F.3d 141 (4th Cir. 2013) is misplaced. Although the Miller Court held that Simmons applied retroactively to cases on collateral review, it did not declare that the Supreme ...


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