United States District Court, Eastern District of North Carolina, Western Division
LOUISE W. FLANAGAN United States District Judge
This matter is before the court on the respondent’s motion to dismiss (DE 9). The issues raised here have been fully briefed and are ripe for adjudication.
On March 11, 2008, petitioner, a federal inmate, was convicted by a jury in the United States District Court for the Western District of North Carolina of conspiracy to possess with intent to distribute at least 100 kilograms of marijuana in violation of 21 U.S.C. § 846 (2006) (count one), possession with intent to distribute at least 100 kilograms of marijuana and aiding or abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (2006) (count two), and unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2006) (count four). See United States v. Bey, 414 F. App’x 570, 571 (4th Cir. 2011) (per curiam), cert denied, 132 S.Ct. 267 (2011). Petitioner was acquitted of using and carrying a firearm in furtherance of a drug trafficking crime (count three). Id. at 572 n. *. On January 14, 2010, the district court sentenced petitioner to a term of 324 months imprisonment for counts one and two and to a term of 120 months imprisonment for count four, to run concurrently, as well as to supervised release for eight years and two years respectively, also to run concurrently. United States v. Bey, No. 3:07-cr-79-FDW-2 (W.D. N.C. Jan. 14, 2010). On March 4, 2011, the United States Court of Appeals for the Fourth Circuit affirmed petitioner’s conviction and sentence. Bey, 414 F. App’x 570. His petition for certiorari to the United States Supreme Court was denied. See Bey v. United States, 132 S.Ct. 267 (2011).
On November 8, 2011, petitioner filed a motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 in his sentencing court. Bey, No. 3:07-cr-79-FDW-2 (W.D. N.C. Nov. 8, 2011). On November 30, 2011, the district court dismissed and denied the section 2255 motion and denied a certificate of appealability. Id. (W.D. N.C. Nov. 30, 2011). Petitioner appealed. Id. (W.D. N.C. Dec. 28, 2011). On June 6, 2012, the Fourth Circuit Court of Appeals dismissed the appeal and denied a certificate of appealability. United States v. Bey, 474 F. App’x 100 (4th Cir. 2012) (per curiam).
In the interim, on December 20, 2011, petitioner filed a motion in his sentencing court to alter or amend his criminal judgment. Bey v. United States, No. 3:11-cv-566-GCM (W.D. N.C. Dec. 20, 2011). On January 30, 2012, the court denied the motion. Id. (W.D. N.C. Jan. 30, 2012).
On October 24, 2012, petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this court, and contended that the jury instructions at his trial were erroneous. Bey v. Levister, No. 5:12-hc-2266-FL (E.D. N.C. October 24, 2012). On January 24, 2013, the court dismissed the petition without prejudice for lack of jurisdiction. Id. (E.D. N.C. Jan. 24, 2013). On February 11, 2013, petitioner filed a motion to alter or amend the dismissal of his § 2241 petition. Id. (E.D. N.C. Feb. 11, 2013). The court denied the motion to alter or amend the judgment. Id. (E.D. N.C. May 31, 2013). On October 31, 2013, the Fourth Circuit affirmed. Bey v. Levister, 545 F. App’x 203 (4th Cir. 2013) (per curiam).
On July 10, 2013, petitioner filed a motion in his sentencing court, which that court construed as successive § 2255 motion, seeking a sentence reduction based on the United States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). United States v. Bey, No. 3:07-cr-79-FDW-2 (W.D. N.C. July 10, 2013). On July 12, 2013, the sentencing court denied the § 2255 motion and denied a certificate of appealability. Id. (W.D. N.C. July 12, 2013) (Text-Only Order). On July 25, 2013, petitioner appealed. Id. (W.D. N.C. July 25, 2013). On December 23, 2013, the Fourth Circuit Court of Appeals denied a certificate of appealability, and dismissed the appeal. Id. (W.D. N.C. January 7, 2014).
On January 27, 2014, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner claims in his petition that he is actually innocent of his conspiracy conviction because the jury convicted him of conspiring to possess marijuana in an amount other than that charged in the indictment. In support of this claim, petitioner relies on the United States Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S.Ct. 2151 (2013). After filing his petition, petitioner requested, and was allowed, to amend his petition. In his amended petition, petitioner contends that he is innocent of aiding and abetting because the evidence failed to satisfy the requirements for aiding and abetting liability under United States v. Rosemond, 134 S.Ct. 1240 (2014).
On September 19, 2014, respondent filed a motion to dismiss the petition for lack of subject matter jurisdiction and for failure to state a claim for which relief may be granted. On October 8, 2014, petitioner filed a response to the motion to dismiss.
A. Standard of Review.
Under Rule 12(b)(1), the petitioner bears the burden of showing that federal jurisdiction is appropriate when challenged by the respondent. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936): Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). When the Rule 12(b)(1) motion attacks the complaint as failing to state facts upon which subject matter jurisdiction may be based, the facts in the complaint are assumed to be true and the petitioner is afforded the same protections he or she would receive under a Rule 12(b)(6) motion. Adams, 697 F.2d at 1219. The Rule 12(b)(1) motion may attack alternatively the existence of subject matter jurisdiction in fact, apart from the complaint. Id. This type of attack is used when a court’s limited jurisdiction precludes hearing the case brought. Materson v. Stokes, 166 F.R.D. 368, 371 (E.D.Va.1996) (citing Mortensen v. First Fed. Sav. And Loan Ass’n, 549 F.2d 884, 891 ...