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Hunt v. United States

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

June 12, 2017

BOBBY RAY HUNT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter comes before the court upon petitioner's motion to alter judgment, pursuant to Federal Rule of Civil Procedure 60 (DE 109). Petitioner filed a supplemental memorandum in support thereof, and the government filed a response in opposition. In this posture, the issues raised are ripe for ruling. For the following reasons, petitioner's motion is granted.

         BACKGROUND

         Petitioner pleaded guilty on October 6, 2009, to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Prior to sentencing, the United States Probation Office prepared a presentence investigation report (“PSR”), determining that petitioner was subject to an enhanced mandatory statutory minimum sentence of 15 years, under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1) (See PSR ¶¶ 54, 50). Petitioner's ACCA status was based upon four prior convictions described in pertinent part in a criminal history table in the PSR as follows:

[¶]

Date of Arrest

Conviction/ Court

Date Sentence Imposed/ Disposition

Guideline/ Points

10.

1980

(Age 25)

Burning of an Uninhabited

House (F)

80CRS25320

Robeson County Superior Court,

Lumberton, NC

02/24/1981: Pled guilty 10 to 20 years custody 03/03/1987: Discharged

4A1.2(e)0

The offense occurred on May 29, 1980.

* * *

12.

12/05/1980

(Age 25)

1) Possess With Intent to Sell or Deliver a Controlled Substance (LSD) (F)

80CRS23589

2) Possession With Intent to Sell or Deliver a Controlled Substance (F) (3 counts)

3) Sell and Deliver a Controlled Substance (F) (2 counts) 80CRS23590, 80CRS23591, and 80 CRS24194

Robeson County Superior Court, Lumberton, NC

02/05/1981: Pled guilty

1) 5 years custody, consecutive

to 80CRS23590, 80CRS23591,

and 80CRS24194

2 and 3) 2 to 4 years custody

03/03/1987: Discharged

4A1.2(e)0

On July 7, 1980, the defendant sold an unspecified amount of Lysergic Acid Diethylamide (LSD) to an individual for $20. As to Counts 2 and 3, the defendant sold and/or delivered unspecified quantities of marijuana to another individual on August 15, 1980; August 27, 1980; and December 5, 1980; respectively.

* * *

15.

07/02/1987 (Age 32)

Possession With Intent to Sell

and Deliver Cocaine (F)

Sell or Deliver Cocaine (F)

87CRS9451

Robeson County Superior Court,

Luberton, NC

09/29/1987: Pled guilty- 5 years custody, suspended, 4 years probation ....

4A1.2(e)0

On May 14, 1987, the defendant sold an unspecified amount of cocaine to an individual. In a light most favorable to the defendant, this conviction was not scored.

19.

02/23/1988 (Age 32)

Possession With Intent to Sell

and Deliver Cocaine (F) Sell or

Deliver Cocaine (F)

88 CRS2607

Possession with Intent to Sell

and Deliver Marijuana (F) Sell

or Deliver Marijuana (F)

88CRS2609

Robeson County Superior Court,

Lumberton, NC

12/05/1988: Pled guilty-10 years custody 06/04/1992: Discharged

4Al.l(a)3

On November 20, 1987, the defendant sold unspecified amounts of cocaine and marijuana. The companion case of Possession of Cocaine (88CRS2608) was dismissed.

(PSR, DE 32, Sealed, at ¶¶ 10, 12, 15, 19).[1] The conviction described at paragraph 10 of the PSR hereinafter shall be referred to as petitioner's arson conviction. The convictions at paragraphs 12, 15, and 19 of the PSR hereinafter shall be referred to collectively as petitioner's “prior drug offense convictions” and individually as the 1981 convictions (PSR ¶12), the 1987 convictions (PSR ¶ 15), and the 1988 convictions (PSR ¶ 19).

         On January 6, 2010, the court sentenced petitioner to a term of imprisonment of 180 months, the mandatory statutory minimum sentence under the ACCA. Petitioner appealed and the court of appeals affirmed his conviction on December 8, 2010. United States v. Hunt, 403 F. App'x 837 (4th Cir. 2010). Petitioner filed a petition for writ of certiorari, which petition was denied on October 3, 2011. Hunt v. United States, 132 S.Ct. 123 (2011).

         On August 13, 2012, petitioner timely filed his first motion to vacate, set aside, or correct sentence, under 28 U.S.C. § 2255, (DE 53), challenging application of his prior drug offense convictions as predicate convictions under the ACCA, in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).[2]

         On February 6, 2014, the court analyzed petitioner's claim and determined that petitioner's arson conviction and the 1988 convictions qualified as ACCA predicates. By contrast, the court determined that petitioner's 1981 convictions did not qualify as ACCA predicates. The court appointed counsel for petitioner and directed further briefing on whether the 1987 convictions qualified as ACCA predicates.

         On May 5, 2014, upon consideration of supplemental briefing, the court determined that petitioner's 1987 convictions qualified as ACCA predicates. Accordingly, the court denied petitioner's motion to vacate. Petitioner appealed the denial of his first § 2255 motion, and the court of appeals held the appeal in abeyance pending decision in United States v. Newbold, 791 F.3d 455 (2015). On September 10, 2015, the court of appeals vacated and remanded this court's judgment on petitioner's first § 2255 motion. The court of appeals stated that, in light of Newbold, the district court should “reconsider its determinations that [petitioner's] 1981 convictions were not serious drug offenses under the ACCA and that [petitioner's] 1987 convictions were serious drug offenses.” United States v. Hunt, 615 F. App'x 795, 796 (4th Cir. 2015) (emphasis added).

         Following mandate on November 2, 2015, this court proceeded to reconsider its analysis of petitioner's 1981 convictions and 1987 convictions, without directing further briefing. In a December 7, 2015, order that is subject of petitioner's instant Rule 60 motion, the court determined, contrary to its earlier analysis, that in light of Newbold, petitioner's 1981 convictions qualified as ACCA predicates, and petitioner's 1987 convictions did not qualify as ACCA predicates. As pertinent herein, the court reasoned that petitioner's 1981 convictions qualified because petitioner was adjudged guilty of the offense of possession with intent to sell “lysergic acid, ” and that this offense carried a maximum sentence of 10 years imprisonment. (See DE 86 at 6-7). Therefore, because the court determined petitioner still had three qualifying ACCA predicate convictions, (arson (PSR ¶10), the 1981 convictions (PSR ¶ 12), and the 1988 convictions (PSR ¶ 19)), the court denied petitioner's first § 2255 motion.

         Petitioner appealed on February 9, 2016. In addition, on February 29, 2016, petitioner filed a motion to reopen the § 2255 proceedings under Rule 60(b), on the basis that his 1988 convictions did not qualify as ACCA predicates. This court provided notice on March 23, 2016, that it was inclined to grant the Rule 60(b) motion. However, on June 29, 2016, the court of appeals denied a certificate of appealability, dismissed the appeal, and denied petitioner's motion for limited remand based on this court's notice, reasoning that the Rule 60(b) motion constituted an unauthorized successive § 2255 motion. Upon mandate of the court of appeals, this court denied petitioner's Rule 60(b) motion on September 15, 2016.

         On October 14, 2016, petitioner filed through appointed counsel a successive § 2255 motion arguing that his arson conviction was not a valid ACCA predicate in light of Johnson v. United States, 125 S.Ct. 2551 (2015). The court of appeals entered an order, however, on November 3, 2016, denying petitioner's motion for authorization to file a second or successive § 2255 motion. This court, on December 6, 2016, dismissed petitioner's successive § 2255 motion for lack of jurisdiction.

         Petitioner filed the instant motion pro se on December 22, 2016, arguing 1) that the district court made a mistake in its December 7, 2015, order in incorrectly referencing lysergic acid to be a Schedule I controlled substance under the 1981 version of N.C. Gen. Stat. § 90-89; and 2) that petitioner's previously-appointed counsel allowed the mistake to go unchallenged and undetected, constituting extraordinary circumstances warranting relief from the § 2255 judgment under Fed.R.Civ.P. 60(a) and (b)(6). Petitioner, through appointed counsel, moved for extension of time to file a supplemental memorandum in support of the motion. The court allowed the motion for extension and directed the United States Probation Office to provide petitioner and the government with a copy of all materials relating to petitioner's 1981 convictions.

         Petitioner's previously-appointed counsel then withdrew, and new appointed counsel entered an appearance. Petitioner filed supplemental memorandum through newly-appointed counsel on March 28, 2017. The government filed a response on May 18, 2017, assuming that the instant motion properly should be considered pursuant to Fed.R.Civ.P. 60, but arguing that petitioner's motion is without merit where a preponderance of the evidence supports the court's judgment in the instant § 2255 matter.

         COURT'S DISCUSSION

         A. Standard of Review

         “The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.” Fed.R.Civ.P. 60(a). “The court may do so on motion or on its own, with or without notice.” Id. In addition, “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . [a] reason that justifies relief.” Fed.R.Civ.P. 60(b).

         “Rule 60(b) has an unquestionably valid role to play in habeas cases.” Gonzalez v. Crosby, 545 U.S. 524, 534 (2005). A Rule 60(b) motion cannot, however, be used to “add a new ground for relief” or to “attack[] the federal court's previous resolution of a claim on the merits, ” for such arguments properly would be dismissed as successive habeas claims. Id. at 532. Instead, it may be used to attack “some defect in the integrity of the federal habeas proceedings.” Id. For example, Rule 60(b) arguments that the district court had misstated the trial record, misquoted trial testimony, or mistakenly attributed statements to witnesses, in denying habeas relief, properly are addressed under the standard for Rule 60(b) relief. See United States v. McRae, 793 F.3d 392, 396 (4th Cir. 2015).

         “The consideration of Rule 60(b) motions proceeds in two stages.” Nat'l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993). First, movant must meet “three threshold conditions[:] . . . that his motion is timely, that he has a meritorious defense to the action, and that the opposing party would not be unfairly prejudiced by having the judgment set aside.” Id. (quotations omitted). “Once the movant has met the threshold showings, he must satisfy one of the six enumerated grounds for relief under Rule 60(b).” Id. at 266. The “catch-all phrase-any other reason justifying relief” at Rule 60(b)(6) “is only to be invoked upon a showing of exceptional circumstances.” Id.

         B. Analysis

         1. ...


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