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 letter dated April 5, 2012, which was construed as a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1]; the Government's Motion to Dismiss [Doc. 7]; the Petitioner's Supplemental Motion to Vacate [Doc. 12]; the Government's Response in Opposition to the Supplemental Motion to Vacate [Doc. 22]; and the Petitioner's Reply in Support of the Supplemental Motion to Vacate [Doc. 24].
On July 10, 2009, the Petitioner was charged in a Bill of Information with possession a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). [Criminal Case No. 3:09-cr-00117 ("CR"), Doc. 1: Bill of Information]. That same day, the Petitioner entered into a plea agreement with the Government, pursuant to which the Petitioner agreed to plead guilty to the felon-in-possession offense. In the plea agreement, the Government agreed not to seek an upward departure based on the Petitioner's two prior convictions for the same offense and further agreed to recommend that the Petitioner's sentence run concurrently with his sentence for a supervised release violation conviction arising out of Criminal Case No. 3:04-cr-00097. [CR Doc. 2: Plea Agreement at 1, 3]. In the plea agreement, the Petitioner also agreed, "in exchange for the concessions made by the United States in [the] plea agreement, " to "waive[ ] all rights to appeal or collaterally attack the sentence of conviction, " with the exception of claims based on ineffective assistance of counsel or prosecutorial misconduct. [Id. at 6-7].
At a hearing conducted pursuant to Rule 11 of the Federal Rules of Criminal Procedure, this Court accepted Petitioner's guilty plea as knowingly and voluntarily entered. [CR Doc. 4: Acceptance of Guilty Plea at 5].
Prior to Petitioner's sentencing hearing, the probation officer prepared a Presentence Report ("PSR"). Based on a total offense level of 13 and a criminal history category of IV, the probation officer recommended a Guidelines range of 24 to 30 months' imprisonment. [CR Doc. 8: PSR at 17]. In the section of the PSR dedicated to the Petitioner's extensive criminal history, the probation officer noted that, at the time the PSR was prepared, the Petitioner had charges pending in North Carolina state court for assault with a deadly weapon with intent to kill or inflict serious injury, kidnaping, robbery, and assault on a government official, among others. [See id. at 9-10]. On April 5, 2010, this Court sentenced the Petitioner to 30 months' imprisonment, a sentence which was at the high end of the applicable Guideline range. [CR Doc. 13: Judgment at 2]. The Court also ordered that Petitioner's sentence would run concurrently to the sentence imposed upon the revocation of Petitioner's supervised release in Criminal Case No. 3:04-cr-00097-MOC, which judgment was entered the same day. [Id.]. The Petitioner did not appeal.
On April 9, 2012, the Court received a letter from the Petitioner, in which he requests that the Court clarify whether his sentence in Criminal Case No. 3:09-cr-00117 should have been ordered to run concurrently with a subsequently imposed state sentence. [Doc. 1]. The Court, with the Honorable Max O. Cogburn, Jr. presiding, construed the Petitioner's motion as a motion to vacate under 28 U.S.C. § 2255 and directed the Government to respond to the Petitioner's allegations. [Doc. 2]. The Government responded and moved to dismiss the Petitioner's motion. [Docs. 6, 7].
The Petitioner, now represented by counsel, filed a supplemental motion to vacate on September 25, 2012. [Doc. 12]. In this supplemental motion, the Petitioner argues that pursuant to United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) ( en banc ), his prior North Carolina conviction for possession of cocaine is no longer considered a felony and therefore, his conviction in Criminal Case No. 3:09-cr-00117 for possession of a firearm after having been convicted of a felony must be vacated. [Doc. 12].
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. Appellate Waiver
As noted above, the Petitioner explicitly waived his right to challenge his conviction or sentence, either on appeal or in a post-conviction proceeding, except for claims asserting ineffective assistance of counsel or prosecutorial misconduct. The Fourth Circuit has made clear that, as with a waiver of a right to appeal, a waiver of a right to collaterally challenge a defendant's sentence is enforceable as long as the defendant waives this right knowingly and voluntarily. See United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005) ("A criminal defendant may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary.").
In the present case, the Petitioner's claims fall squarely within the scope of the appellate waiver set forth in his plea agreement, and the Court has already found that the Petitioner knowingly and voluntarily entered his guilty plea pursuant to that agreement. Accordingly, the Court concludes that the Petitioner has waived his right to collaterally attack ...