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 Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 or, alternatively, for relief under 28 U.S.C. § 2241 or under the writs of error coram nobis and audita querela [Docs. 1, 4]; the Government's Response in Opposition [Doc. 6]; and the Government's Motion for Leave to File Out of Time [Doc. 9]. Petitioner is represented by Ross H. Richardson of the Federal Defenders of Western North Carolina. For the reasons that follow, Petitioner's motion to vacate will be denied, and the § 2255 petition will be dismissed as untimely. Furthermore, Petitioner is not entitled to relief under any of his alternative grounds for relief.
I. PROCEDURAL HISTORY
Petitioner Kirk Pryor was indicted by the Grand Jury for the Western District of North Carolina on July 10, 2001, and charged with conspiracy to possess with intent to distribute crack and powder cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. [Criminal Case No. 1:01-cr-00048-MR-6, Doc. 3: Indictment]. The same day, the Government filed an Information in accordance with 21 U.S.C. § 851, notifying Petitioner and this Court that it intended to seek enhanced penalties based on Petitioner's prior felony drug offenses. [Id., Doc. 5: Information]. In particular, the Government asserted in the Information that Petitioner had been convicted of possession with intent to sell or deliver a Schedule II controlled substance on two occasions - January 5, 1994 and May 11, 1995 - in Henderson County Superior Court. [Id.].
Petitioner's case was ultimately tried before a jury, and the jury found him guilty of the drug-trafficking conspiracy offense. [Id., Doc. 178: Jury Verdict]. Before Petitioner's sentencing hearing, the probation office prepared a Presentence Report ("PSR"), in which the probation officer calculated a base offense level of 38 and recommended a three-level enhancement based on Petitioner's role in the conspiracy. [Id., Doc. 597 at 6-7: PSR]. The probation officer reviewed Petitioner's criminal history, which included convictions of four offenses on January 5, 1994 - all of them for possession with intent to sell and deliver a Schedule II controlled substance - for which Petitioner received three years of imprisonment for each conviction. [Id. at 8-9]. Petitioner's criminal history also included the conviction on May 11, 1995, for possession with intent to sell and delivery cocaine, for which Petitioner was sentenced to 7 to 11 months in prison. [Id. at 10]. Based on these prior felony drug offenses, the probation officer noted that Petitioner was subject to a statutory mandatory minimum term of life in prison. [Id. at 14]. Consistent with the probation officer's calculation, this Court sentenced Petitioner to life in prison, entering its judgment on July 15, 2002. [Id., Doc. 255: Judgment]. Petitioner appealed, and the Fourth Circuit affirmed this Court's judgment on September 15, 2003. United States v. Pryor , 75 F.App'x 157 (4th Cir. 2003).
On August 17, 2012, Petitioner filed a pro se motion to vacate his conviction under 28 U.S.C. § 2255. [Doc. 1]. On April 1, 2013, counsel filed a supplement to the motion to vacate, alternatively seeking relief under 28 U.S.C. § 2241 or for writs of error coram nobis and audita querela. [Doc. 4]. In this supplemental petition, counsel argues that one of the convictions used to support Petitioner's sentence enhancement, namely his May 1995 conviction, was not punishable by more than one year in prison, as established by the Fourth Circuit's decision in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011). [Id.]. On March 4, 2014, this Court ordered the Government to respond, and the Government filed its brief in response on June 17, 2014. [Docs. 5, 9].
II. STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings..." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the argument presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States , 423 F.2d 526, 529 (4th Cir. 1970).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the "AEDPA"). Among other things, the AEDPA amended 28 U.S.C. § 2255 to include a one-year statute of limitations period for the filing of a motion to vacate. The limitation period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through ...