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Whitener v. United States

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

December 2, 2014

ERIC WHITENER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER

MAX O. COGBURN, Jr., District Judge.

THIS MATTER is before the court on petitioner's Motion to Reconsider. In moving to reconsider, petitioner contends that the instant Motion to Vacate, Set Aside, or Correct Sentence is not a second or successive petition despite having filed at least two prior petitions with this court (3:97cv262; 3:13cv181), a petition in the Eastern District of Kentucky (see ¶ 11(a) of Motion), and a petition in the Eastern District of North Carolina (see ¶ 11(b) of Motion), all attacking his November 26, 1990, conviction. Giving petitioner the benefit of the doubt and that the petition is not barred as a second or successive petition under AEDPA, the court will grant the motion to reconsider, strike the previous order and Judgment, and conduct an initial screening of petitioner's contentions.

I.

The court has conducted an initial screening of the petition under Rule 4(b) of the Rules Governing § 2255 Proceedings, and finds that the petition has been signed under penalty of perjury.

II.

Next the court has reviewed the substance of the petition to determine what contentions petitioner is attempting to assert. The petitioner has asserted the following contentions:

I. The jury instructions given by the court in 1990 were invalid in light of the Supreme Court's [1995] Bailey decision;
II. The jury instructions given by the court in 1990 were not valid in light of Rosemond v. United Sates, 134 S.Ct. 1240 (2014); and
III. Petitioner's multiple 924(c) convictions and sentences for aiding and abetting violate the Double Jeopardy Clause under Rosemond.

III.

As to petitioner's first contention under Bailey v. United States, 516 U.S. 137 (1995), such claim is patently time barred. The AEDPA established a one-year grace period, ending on April 24, 1997, in which a defendant could file a § 2255 motion based on claims existing on the date of its enactment, which was April 24, 1996. Thus, petitioner had up to April 24, 1997, to submit his claim under Bailey.

Petitioner filed a habeas petition on May 2, 1997, which he later voluntarily dismissed. Whitener v. United States, 3:97cv262 (W.D. N.C. ). Even assuming that petitioner raised his Bailey claim in that petition and that such was submitted to prison authorities for mailing before April 24, 1997, such filing does nothing to preserve such claim for refiling some 17 years after the deadline set by Congress in the AEDPA has passed. Thus, petitioner fails to state a claim upon which this court could grant relief as such claim is time barred.

IV.

As to contentions two and three, which the court considers to be "Rosemond claims, " petitioner contends that such claims are timely under Section 2255(f)(3) as they only arose after ...


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