United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255; Alternative Petition for Relief under 28 U.S.C. § 2241; Alternative Petition for Writ of Coram Nobis; and Alternative Petition for a Writ of Audita Querela [Doc. 1], and the Government's Motion to Dismiss [Doc. 4].
On October 23, 2007, the Petitioner was charged in a Bill of Indictment with one count of possession by a felon of one or more firearms, including a.40 caliber Glock handgun, a Norinco SKS assault rifle, and a Romarm WASR-10 assault rifle, and several rounds of ammunition, all in violation of 18 U.S.C. § 922(g)(1). [Criminal Case No. 3:07-cr-00236-MR ("CR"), Doc. 1: Indictment]. The Petitioner pleaded guilty to that charge on January 25, 2008, without the benefit of a written plea agreement. [CR Doc. 9: Entry and Acceptance of Guilty Plea].
Prior to the Petitioner's sentencing, the United States Probation Office prepared a Presentence Report (PSR). In calculating the Petitioner's total offense level, the probation officer began with a base offense level of 26 pursuant to U.S.S.G. § 2K2.1(a)(1), as the Petitioner's offense involved two semiautomatic firearms capable of accepting a large capacity magazine and the Petitioner committed the instant offense following two felony convictions for crimes of violence (specifically, a 2004 North Carolina conviction for breaking and entering and a 2005 North Carolina conviction for involuntary manslaughter). [CR Doc. 12: PSR at 4-5, 6]. After determining the Petitioner's base offense level, the probation officer added two levels because the offense involved three firearms and deducted three levels for acceptance of responsibility, resulting in a total offense level of 25. When coupled with the Petitioner's criminal history category of IV, the resulting advisory Guidelines range of imprisonment was 84 to 105 months. [Id. at 10].
The Court conducted the Petitioner's sentencing hearing on June 26, 2008. At the hearing, the Petitioner's counsel objected to the application of the base offense level 26, arguing that the Petitioner did not actually possess the rifles and that his prior conviction for breaking and entering was not a crime of violence. [CR Doc. 24: Sentencing H'rg Transcript at 10-11]. After receiving evidence and hearing argument from both sides, the Court found by a preponderance of the evidence that the Petitioner possessed all three firearms and concluded that his prior conviction for breaking and entering qualified as a predicate felony conviction for a crime of violence. [Id. at 53]. Accordingly, the Court adopted the PSR and determined that the applicable Guidelines range was 84 to 105 months. [Id. at 54]. After consideration of the § 3553(a) factors, the Court sentenced the Petitioner to a term of 98 months' imprisonment. [Id. at 63-64].
The Petitioner appealed, challenging the constitutionality of his conviction under § 922(g)(1). The United States Court of Appeals for the Fourth Circuit affirmed his conviction and sentence in an unpublished opinion on April 1, 2009. United States v. Battle, 320 F.Appx. 149 (4th Cir. 2009) (per curiam).
On August 17, 2012, Petitioner, through counsel, filed the instant motion pursuant to 28 U.S.C. § 2255. In his motion, the Petitioner argues that, pursuant to the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), he does not have the requisite predicate felony convictions to support a base offense level of 26 pursuant to U.S.S.G. § 2K2.1(a)(1). In the event that the Court denies relief pursuant to § 2255, the Petitioner alternatively asserts his Simmons claim pursuant to a petition for relief under 28 U.S.C. § 2241, a petition for a writ of error coram nobis, and a petition for a writ of audita querela. [Doc. 1].
The Government moves to dismiss the Petitioner's motion as untimely. [Doc. 4]. Alternatively, the Government argues that the Petitioner's motion should be dismissed because the Petitioner has not asserted a cognizable claim for relief under 28 U.S.C. § 2255, and because the Petitioner is not entitled to relief under any of the alternative theories he asserts. [Id.].
II. STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly 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. If a petitioner's motion is not dismissed after this initial review, the Court must direct the Government to respond. Id . The Court must then review the Government's answer in order to determine whether an evidentiary hearing is warranted under Rule 8(a). Having considered the record in this matter, the Court finds it is clear that Petitioner is not entitled to relief; therefore, an evidentiary hearing is not required. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
A. Petitioner's § 2255 Motion is Untimely
A motion to vacate pursuant to 28 U.S.C. § 2255 is subject to a one-year statute of ...