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Pritchett v. United States

United States District Court, W.D. North Carolina, Charlotte Division

March 13, 2017

HAROLD ELWOOD PRITCHETT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MAX O. COGBURN, JR. UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court upon Petitioner Harold Elwood Pritchett's pro se Motion to Vacate, Set Aside or Correct Sentence, 28 U.S.C. § 2255 (Doc. No. 1), and Motion for Judgment on the Pleadings (Doc. No. 8). Also before the Court is the Government's Motion to Dismiss Pritchett's Motion to Vacate. (Doc. No. 4.)

         I. BACKGROUND

         In January 2011, Pritchett entered the Sun Trust Bank in Monroe, North Carolina, wearing a black stocking mask and pointing a semiautomatic pistol. Presentence Investigation Report (“PSR”) ¶ 5, Doc. No. 30.[1] He told two tellers to give him all their money and that they had twenty seconds to do so “or somebody's gonna get hurt.” Id. The tellers complied, and Pritchett left the bank with $7, 418 in cash. Id. He was arrested the following day. PSR ¶ 6.

         A grand jury indicted Pritchett for conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371 (Count One); bank robbery “by force, violence, and intimidation” and aiding and abetting the same in violation of 18 U.S.C. §§ 2, 2113(a) (Count Two); armed bank robbery and aiding and abetting the same in violation of 18 U.S.C. §§ 2, 2113(d) (Count Three); and using and carrying a firearm in furtherance of a crime of violence (bank robbery) and aiding and abetting the same in violation of 18 U.S.C. §§ 2, 924(c)(1). Indictment, Doc. No. 3. On October 26, 2011, Pritchett entered a straight-up guilty plea to all four charges. Entry and Acceptance of Guilty Plea, Doc. No. 21.

         A probation officer prepared a PSR recommending that Pritchett be sentenced as a career offender under U.S.S.G. § 4B1.1, citing prior state convictions for possession with intent to sell/deliver cocaine and common law robbery in North Carolina. PSR ¶¶ 20, 57-58. The PSR also noted Pritchett's prior state conviction for first-degree murder in Virginia. PSR ¶ 33. Based on a total offense level of 31 and a criminal history category of VI, which applied even without the career offender enhancement, the guidelines range was 188 to 235 months of imprisonment. PSR ¶ 85. However, because Pritchett was convicted under § 924(c), pursuant to U.S.S.G. § 4B1.1(c)(3), his guidelines range became 272 to 319 months of imprisonment. PSR ¶ 85.

         Pritchett objected to his classification as a career offender and sought a downward departure or variance. Sentencing Mem., Doc. No. 34. This Court determined that Pritchett was not eligible for the career offender enhancement because his prior state drug conviction was not a felony under United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), and concluded that Pritchett's total offense level was 19. Stmt. of Reasons, Doc. No. 42. This reduced the advisory guidelines range to: 60 months as to Count 1; 63-78 months as to Counts Two and Three; and 84 months, to be served consecutively, as to Count Four. Id. The Court departed downward and imposed a 60-month sentence for Count One, concurrent sentences of 54 months for Counts Two and Three, and a consecutive sentence of 84 months for Count Four for a total sentence of 144 months imprisonment. Am. J., Doc. No. 47. Judgment was entered on February 1, 2013. Doc. No. 41.

         Pritchett did not file a direct appeal. On or about June 17, 2016, he filed the instant Motion to Vacate, asserting that his convictions for bank robbery and for possession of a firearm in furtherance of a crime of violence should be vacated under Johnson v. United States, 135 S.Ct. 2551 (2015), because neither offense presented a serious risk of physical injury to another person.[1](Mot. to Vacate 5, 14, Civ. Doc. No. 1.)

         On June 24, 2016, the Court ordered the Government to answer or otherwise respond to Pritchett's § 2255 Motion. (Civ. Doc. No. 2.) The Government filed a Motion to Dismiss on December 20, 2016. (Civ. Doc. No. 4.) In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court notified Pritchett that he had a right to respond to the Government's Motion and warned that failure to respond could result in dismissal of his Motion to Vacate without further notice. (Roseboro Order, Civ. Doc. No. 5.) In lieu of a response, Pritchett filed a Motion for Judgment on the Pleadings on January 26, 2017. (Civ. Doc. No. 8.)

         II. STANDARD OF REVIEW

         A. Motion for Judgment on the Pleadings

         Under the Federal Rules of Civil Procedure, after the pleadings are closed, a party may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). Pritchett has filed such a motion, contending that the time for the Government to file a responsive pleading to his Motion to Vacate was December 16, 2016. He argues that the Government's Motion to Dismiss is not a responsive pleading, and that, in any event, it was filed out of time. He moves to strike the Government's Motion and requests that the Court enter Judgment on the Pleadings. (Civ. Doc. No. 8.)

         A motion for judgment on the pleadings is decided under the same standard as a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. When faced with a Rule 12(b)(6) motion, a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In ruling on a 12(b)(6) motion, the court “must determine whether it is plausible that the factual allegations in the complaint are enough to raise a right to relief above the speculative level.” Simmons v. United Mortg. & Loan Inc., LLC, 634 F.3d 754, 768 (4th Cir. 2011).

         Pritchett, inadvertently, is targeting his own Motion to Vacate for failure to state a claim upon which relief may be granted. Therefore, the Court will construe his Motion for Judgment on the Pleadings as a Motion to ...


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