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Galloway v. United States

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

February 18, 2015

RICHARD KENNETH GALLOWAY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 1:05-cr-00251-MR-DLH-1

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 Motion to Appoint Counsel [Doc. 4]; the Government's Motion for Leave to File Out of Time [Doc. 20]; the Government's Motion to Dismiss [Doc. 21]; and Petitioner's "Motion for Extension of Time to File Traverse to Government's Return" [Docs. 22, 23].[1]

I. FACTUAL AND PROCEDURAL HISTORY

On October 4, 2005, Petitioner was charged in a Bill of Indictment with two counts of possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and two counts of possession of a firearm while being an unlawful user of and addicted to a controlled substance, in violation of 18 U.S.C. § 922(g)(3). [Criminal Case No. 1:05-cr-00251-MR, Doc. 1: Indictment]. Petitioner was appointed counsel and soon entered into a written plea agreement wherein he agreed to plead guilty to one § 922(g)(1) offense in exchange for the Government's agreement to dismiss the remaining three counts. Pursuant to the plea agreement, Petitioner agreed to waive his right to challenge his conviction or sentence except on claims of ineffective assistance of counsel and/or prosecutorial misconduct. [ Id., Doc. 16: Plea Agreement].

In preparation for Petitioner's sentencing hearing, the probation officer drafted a presentence report ("PSR"), which detailed a criminal history spanning over thirty years. As is relevant to the instant collateral proceeding, the PSR noted a 1969 conviction for manslaughter, for which Petitioner received an active term of eight years' imprisonment, and a 1969 conviction for felony escape which occurred while Petitioner was serving his sentence for manslaughter and for which he was sentenced to an active term of 12 months that was to be served consecutively to the manslaughter term. [ Id., Doc. 41: PSR ¶¶ 25-26]. The PSR also noted two 1976 convictions for felony assault with a deadly weapon, for which Petitioner received a consolidated term of five years' imprisonment. Finally, the PSR noted two 1992 convictions for felony possession with intent to manufacture, sell or deliver marijuana, one count of felony possession of a weapon of mass destruction, and three felony counts of maintaining a vehicle, dwelling or place for controlled substances. All of these convictions were consolidated for sentencing and Petitioner was sentenced to a term of five years' imprisonment for these offenses. [Id. ¶¶ 27, 38].

Based on these prior convictions, the probation officer recommended that the Petitioner be designated as an armed career criminal, pursuant to USSG § 4B1.4 and 18 U.S.C. § 924(e). Based on his armed career criminal status, Petitioner's Total Offense Level was calculated to be a level 30 and he faced a statutory mandatory minimum of 180 months' imprisonment. [Id. ¶¶ 68-69]. On November 1, 2006, this Court, the Hon. Lacy H. Thornburg presiding, sentenced Petitioner to 180 months in prison. [ Id., Doc. 22: Judgment]. Petitioner appealed and the Fourth Circuit Court of Appeals affirmed this Court's judgment, entering its mandate on April 23, 2008. United States v. Galloway, 271 F.Appx. 296 (4th Cir. 2008) (unpublished). Petitioner did not file a petition for writ of certiorari.

Over four years later, on August 14, 2012, Petitioner filed the present § 2255 motion to vacate his sentence based, at least in part, on the Fourth Circuit's en banc decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). [Doc. 1]. He later filed a supplemental motion to vacate, which he signed under the penalty of perjury. [Doc. 8]. Petitioner also seeks the appointment of counsel. [Doc. 3]. In response, the Government moved to dismiss Petitioner's motion, seeking leave to file its response four days out of time. [Docs. 19, 20]. Petitioner in turn moved for an extension of time to respond to the Government's motion to dismiss. [Docs. 22, 23]. Petitioner filed his response on October 20, 2014. [Doc. 24]. Having been fully briefed, this matter is ready for disposition.

II. STANDARD OF REVIEW

Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to 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

A. Motion to Vacate

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides, in relevant part, as follows:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period ...

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