United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on Petitioner's Motion to Vacate Conviction and 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. 9]. For the reasons that follow, the Court will dismiss the Petitioner's motion and grant the Government's motion to dismiss.
I. PROCEDURAL HISTORY
The Petitioner Mark Stroud Wedding was indicted by the Grand Jury for the Western District of North Carolina on December 18, 2007, and charged with robbery in violation of the Hobbs Act, 18 U.S.C. § 1951; using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [Criminal Case No. 3:07-cr-286-MR, Doc. 1: Indictment]. Four months later, Petitioner entered into a plea agreement with the Government and pleaded guilty to the Hobbs Act and felon-in-possession offenses. [ Id., Doc. 13: Plea Agreement at 1]. In the plea agreement, the parties agreed to a joint recommendation that the Court find the adjusted offense level to be 32, based, in part, on Petitioner's status as a career offender. [Id. at 1-3]. Petitioner also agreed in the plea agreement to waive his right to seek collateral review of his sentence under 28 U.S.C. § 2255 "and similar authorities, " except on the bases of prosecutorial misconduct or ineffective assistance of counsel. [Id. at 6].
Before Petitioner's sentencing hearing, the probation office prepared a Presentence Report ("PSR"), in which the probation officer calculated an adjusted offense level of 32 and a total offense level of 29, agreeing with the parties that Petitioner qualified as a career offender under U.S.S.G. § 4B1.1. [ Id., Doc. 16 at ¶¶ 27; 29: PSR]. This offense level, combined with a criminal history category of VI, resulted in an advisory Sentencing Guidelines range of imprisonment of between 151 and 188 months in prison. [Id. at ¶ 58]. The probation officer calculated that if the career offender enhancement did not apply that the total offense level would be 28, just one level below the offense level that resulted from the application of the enhancement. See [Id. at ¶¶ 26; 27].
This Court ultimately sentenced Petitioner to 188 months in prison, entering judgment on November 24, 2008. [ Id., Doc. 28: Judgment]. Petitioner did not appeal.
On August 17, 2012, Petitioner filed the present motion to vacate his sentence under 28 U.S.C. § 2255. In his motion, Petitioner argues that his sentence was improperly enhanced based on his career-offender status, as established by the Fourth Circuit's en banc decision in United v. Simmons, 649 F.3d 237 (4th Cir. 2011). Petitioner also seeks alternative relief under 28 U.S.C. § 2241 or under the writs of error coram nobis or audita querela .
On July 15, 2014, the Government moved to hold this matter in abeyance pending the rehearing en banc in Whiteside v. United States, No. 13-7152, by the Court of Appeals for the Fourth Circuit. [Doc. 5]. The Court granted the Government's motion on July 29, 2014. [Doc. 6]. Following the en banc decision in Whiteside, the Government filed a motion to dismiss the Petitioner's motion to vacate and alternative petitions. [Doc. 9].
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. After having considered the record in this matter, the Court finds that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the "AEDPA"). Among other things, the AEDPA amended 28 U.S.C. § 2255 to include a one-year statute of limitations period for the filing of a motion to vacate. The limitation period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented ...