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Harding v. United States

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

March 3, 2017

VEOTIS HARDING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          THRRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.

         This cause comes before the Court on petitioner's motions to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. [DE 107, 110]. The government has moved to dismiss the petition, and the matter is ripe for ruling. For the reasons discussed below, the government's motion to dismiss is granted and petitioner's motions are dismissed.

         BACKGROUND

         On October 21, 2002, petitioner pleaded guilty, without a written plea agreement, to conspiracy to commit interstate transportation in aid of racketeering, in violation of 18 U.S.C. §§ 1952 and 371 (Count One); interstate transportation in aid of racketeering (by use of the mail and a telephone transmission) and aiding and abetting, in violation of 18 U.S.C. §§ 1952 and 2 (Counts Two through Ten); interstate transportation in aid of racketeering (by use of the mail and electronic transmission) and aiding and abetting the same offense, in violation of 18 U.S.C. §§ 1952 and 2 (Counts Eleven through Eighteen); conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and (a)(1)(B)(i) and 1956(h) (Count Nineteen); money laundering and aiding and abetting, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2 (Counts Twenty through Thirty-One); and money laundering and aiding and abetting, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (Counts Thirty-Two through Thirty-Five). [DE 41]. In January of 2003 petitioner filed a motion to withdraw his plea of guilty, which this Court denied on April 4, 2003. [DE 43, 45, 47, and 51]. On August 28, 2003, petitioner was sentenced to a total of 40 years' imprisonment on all counts. [DE 61].

         On September 8, 2003, petitioner filed a notice of appeal, and on September 2, 2005, the Fourth Circuit Court of Appeals remanded petitioner's case for resentencing. [DE 74]. On May 24, 2006, petitioner was resentenced to a total term of 330 months' imprisonment. [DE 89]. Petitioner also appealed the new judgment, and on May 22, 2007, the Fourth Circuit affirmed in an unpublished opinion. [DE 97].

         On or about May 8, 2012, petitioner filed a motion under 28 U.S.C. § 2241 in the District of South Carolina. [Harding v. Owens, No. 5:13-HC-2212-BO (E.D. N.C. May 8, 2012)]. Petitioner argued that his money laundering convictions were invalid under United States v. Santos, 553 U.S. 507 (2008). [No. 5:13-HC-2212-BO, DE 1 at 5]. That motion was eventually transferred to the Eastern District of North Carolina. [No. 5:13-HC-2212-BO, DE 31 at 11-12].[1]

         This Court dismissed petitioner's motion and dismissed petitioner's application for a writ of coram nobis. The Court also denied a certificate of appealability as to the dismissal. [No. 5:13-HC-2212-BO, DE 52 at 6]. As to the motion of actual innocence, petitioner was given notice that the motion was converted to a 28 U.S.C. § 2255 petition and docketed in his criminal case. Petitioner was then given until January 31, 2015, to respond to the petition, or-without further order of the court-the petition would be dismissed without prejudice. [No. 5:13-HC-2212-BO, DE52at6].

         Petitioner responded to the converted petition on January 30, 2015; however, on March 20, 2015, petitioner was directed to "return the [§] 2255 form in accordance with [the Court's]

         instructions, within fourteen days from the filing of this order. Failure to do so may result in the dismissal of this action or the striking of the motion." [DE 107, 109]. Petitioner did not return the § 2255 form until November 3, 2015.

         Petitioner then filed a subsequent motion under § 2255 on June 28, 2016, as well as two subsequent addendums. [DE 110, 114, 118]. Each of these documents contain the same allegations as the previously dismissed motion brought under § 2241. [No. 5:13-HC-2212-BO, DE 36, 36-1]. Petitioner also added a claim under Johnson v. United States, 135 S.Ct. 2551 (2015), as well as claims that two of his convictions should have merged and that he was subjected to double jeopardy. [DE 110].

         DISCUSSION

         A Rule 12(b)(6) motion must be granted if the pleading fails to allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Rule 12, Rules Governing Section 2255 Proceedings (Rules of Civil Procedure apply to section 2255 proceedings).

         In Johnson v. United States, the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), is unconstitutionally vague. 135 S.Ct. at 2557. Petitioner fails to raise a cognizable claim under Johnson because the residual clause does not affect any aspect of his sentence. Petitioner was neither sentenced as an armed career criminal nor as a career offender. Petitioner did not receive any guidelines enhancements based upon a crime of violence. Therefore, petitioner has failed to state a claim under Johnson and this claim is dismissed.

         A motion to vacate under § 2255 must be filed within one year of the latest of four triggering events: (1) the date the judgment of conviction becomes final; (2) the date on which an impediment to making a motion that is created by the government is removed; (3) the date the Supreme Court initially recognizes a right that is made retroactively applicable to cases on collateral review; or (4) the date on which ...


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