United States District Court, W.D. North Carolina, Charlotte Division
COGBURN, JR. UNITED STATES DISTRICT JUDGE
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.)
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. 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.
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.
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.
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.
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.(Mot. to Vacate 5, 14, Civ. Doc. No. 1.)
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.
STANDARD OF REVIEW
Motion for Judgment on the Pleadings
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.)
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).
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 ...