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Hensen v. United States

United States District Court, E.D. North Carolina, Western Division

June 2, 2015



JAMES C. DEVER III, Chief United States District Judge.

On October 2, 2014, Ulysses Samuel Hensen ("Hensen") moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his 120-month sentence [D.E. 75]. On March 30, 2015, the government moved to dismiss Hensen's section 2255 motion. See [D.E. 85]. On April 28, 2015, Hensen replied. See [D.E. 88]. As explained below, the court grants the government's motion to dismiss and dismisses Hensen's section 2255 motion.


On June 6, 2011, Hensen pleaded guilty, pursuant to a written plea agreement [D.E. 27], to possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924. See Rule 11 Tr. [D.E. 67] 27-28. On December 14, 2011, at Hensen's sentencing hearing, the court found that Hensen had a criminal history category of VI and a total offense level of 25. See Sentencing Tr. [D.E. 64] 16; Presentence Investigation Report ("PSR") [D.E. 28] ¶¶ 54, 55. The court calculated Hensen's advisory guideline range to be 110 to 120 months' imprisonment. See Sentencing Tr. 16-17. After considering all relevant factors under 18 U.S.C. § 3553(a), the arguments of counsel, and Hensen's allocution, the court sentenced Hensen to 120 months' imprisonment. See id. 36-43. The court entered judgment on December 23, 2011. See [D.E. 56]. Hensen appealed his conviction and sentence. See [D.E. 54]. Hensen's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). See Opening Brief of Appellant, United States v. Hensen, No. 11-5212 (4th Cir. May 3, 2012), [D.E. 23]. Hensen filed a pro se supplemental brief questioning the validity of his guilty plea, the application of U.S.S.G. § 2K2.1(b)(6), whether Hensen knowingly and voluntarily waived his right to appeal, and whether this court erred at sentencing. See Motion. United States v. Hensen, No. 11-5212 (4th Cir. June 11, 2012) [D.E. 36-2].

On August 28, 2012, the United States Court of Appeals for the Fourth Circuit held that this court fully complied with Rule 11 of the Federal Rules of Criminal Procedure when it accepted Hensen's guilty plea, that Hensen's guilty plea was knowing and voluntary, and that the appellate waiver in Hensen's plea agreement was enforceable and barred Hensen's attack on his sentence. See United States v. Hensen, 494 F. App'x 302, 303-04 (4th Cir. 2012) (per curiam) (unpublished). Accordingly, the Fourth Circuit affirmed Hensen's conviction and dismissed his sentence challenge. See id. Hensen did not seek a writ of certiorari and his time to do so expired on November 26, 2012. See Claw. United States, 537 U.S. 522, 525 (2003); S.Ct. R. 13.1.

On October 2, 2014, Hensen filed his section 2255 motion. See [D.E. 75]. Hensen alleges: (1) ineffective assistance of counsel for failing to file a motion to dismiss concerning the rifle at issue in his case; (2) that his guilty plea was involuntary due to prescription medications that he took before he pleaded guilty; (3) ineffective assistance of counsel for failing to raise Hensen's intoxication due to prescription medication at his Rule 11 and sentencing hearings; (4) that the court's application of U.S.S.G. § 2K2.1(b)(6) at sentencing violated Alleyne v. United States, 133 S.Ct. 2151 (2013); and (5) ineffective assistance of counsel at sentencing for failing to ask the court to allow Hensen to withdraw his guilty plea due to Hensen's intoxication at his Rule 11 hearing. See [D.E. 75] 4-9.

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted" tests whether the complaint is legally and factually sufficient. See Ashcroft v. Iqbal, 556 U.S. 662,677-78 (2009); Bell Ad. Corp. v. Twombly, 550 U.S. 544,555-63,570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187,190 (4th Cir. 2010), aff'd, 132 S.Ct. 1327 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89,93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions drawn from the facts. See, e.g., Iqbal, 556 U.S. at 678. Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 677-79. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See, e.g.. Fed.R.Evid. 201; Tellabs. Inc. v. Makor Issues & Rights. Ltd., 551 U.S. 308,322 (2007); Philips v. Pitt Cntv. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a section 2255 motion to vacate, the court is not limited to the motion itself. The court also may consider "the files and records of the case." 28 U.S.C. § 2255(b); see United States v. McGill, 11 F.3d 223,225 (1st Cir. 1993).

First, the government argues that Hensen's section 2255 motion is untimely. Section 2255(f) contains a one-year statute of limitations for petitions for collateral review. Section 2255(f) provides that the one-year clock is triggered by one of four conditions, whichever occurs last:

(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 from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4); Johnson v. United States, 544 U.S. 295, 299-30 (2005); Whiteside v. United States, 775 F.3d 180,182-83 (4th Cir. 2014) (en banc).

As for section 2255(f)(1), Hensen filed his section 2255 motion on October 2,2014, almost two years after his judgment of conviction became final. Thus, Hensen's section 2255 motion is untimely under 28 U.S.C. ยง 2255(f)(1). See, e.g., ...

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