United States District Court, E.D. North Carolina, Western Division
THRRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
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.
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].
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Circuit affirmed in an unpublished opinion.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].
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
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].
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
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.
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
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).
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.
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