United States District Court, Western District of North Carolina, Charlotte Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on Petitioner’s original and amended Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255. [Cv Docs. 1; 6].
Petitioner was named in an indictment returned by the grand jury for this District on May 29, 2008. [Cr Doc. 1]. Petitioner was charged with the single offense of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [Id.]. On January 26, 2009, Petitioner pled guilty to the charge contained in the Indictment. Following Petitioner’s guilty plea, the Probation Office conducted a pre-sentence investigation and filed a draft Presentence Report with the Court on April 29, 2009. [Cr Doc. 17]. Petitioner’s Final Revised PSR was filed June 24, 2009. [Cr Doc. 20].
At sentencing, the Court imposed upon Petitioner a 69 month term of imprisonment. [Cr Doc. 23]. The Court entered its judgment on July 2, 2009. [Cr Docket Sheet]. Petitioner did not appeal, but on April 9, 2012, Petitioner filed a motion to vacate his conviction under 28 U.S.C. § 2255. [Cv Doc. 1]. Petitioner argues in his 2255 motion and amended motion that he is actually innocent of the firearm offense because the predicate conviction alleged in the Indictment does not qualify as “felony” for purposes of § 922(g)(1). [Cv Docs. 1; 6].
According to Petitioner’s PSR, the following undisputed facts describe the Petitioner’s offense of conviction:
On January 11, 2008, a Charlotte-Mecklenburg Police Department (CMPD) officer was traveling on East Sugar Creek Road near Eastway Drive when he observed a sports utility vehicle. The vehicle was driven by James Rorie. Brian Blakeney was in the right front passenger seat of the vehicle and was firing a handgun out of the window. The officer initiated a traffic stop and the vehicle pulled into the parking lot at Garringer High School. As the officer ordered both passengers out the vehicle, he observed a .357 shell casing fall from Blakeney's waist and strike the ground. Both the driver and Blakeney were secured and a search of the vehicle was conducted. The officer could not locate the gun and asked Blakeney the location of the firearm. Blakeney told the officer that he did not know what he was talking about. The CMPD officer then retraced the path of the vehicle and found a Taurus .357 revolver at the intersection of East Sugar Creek Road and Eastway Drive. This firearm was reported stolen in Union County, North Carolina. Blakeney was charged with Possession of Stolen Goods and Discharging a Firearm in City Limits. Rorie was arrested for Driving While License Revoked.
[Cr Doc. 20 at 3].
Based on these facts and the Petitioner’s criminal record, the grand jury in this District returned an indictment alleging that:
On or about January 11, 2008, in Mecklenburg County, within the Western District of North Carolina, BRIAN JERMAINE BLAKENEY having been previously convicted of a crime punishable by imprisonment for a term exceeding one year, that is, BLAKENEY was convicted on or about March 19, 1996, in the Superior Court of Union County, North Carolina, of Possession with Intent to Sell and Deliver Cocaine, did knowingly and unlawfully possess a firearm, in and affecting interstate commerce, that is, a handgun, in violation of Title 18, United States Code, Section 922(g)(1).
[Cr Doc. 1]. It is the March 19, 1996, North Carolina conviction for Possession with Intent to Sell and Deliver Cocaine that the Petitioner argues does not constitute a felony under federal law.
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 ...