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Stroupe v. United States

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

June 19, 2017

BON ALEXANDER STROUPE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Richard L. Voorhees United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, [1] (Doc. No. 1), on Petitioner's Supplemental Motion to Vacate, (Doc. Nos. 8, 24, 30, 33), and on the Government's Responses to the Motion to Vacate, (Doc. Nos. 13, 29, 34, 38). Petitioner is represented by Ann L. Hester of the Federal Public Defenders of Western North Carolina. Through counsel, Petitioner moves this Court to vacate his career offender sentence on the basis of the Fourth Circuit's en banc decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), and he also contends that he is entitled to sentencing relief under Johnson v. United States, 135 S.Ct. 2551 (2015). Finally, Petitioner has also filed a pro se Motion for Leave to Amend, in which he contends that he is entitled to relief under Descamps v. United States, 133 S.Ct. 2276 (2013). (Doc. No. 16).

         I. BACKGROUND

         Petitioner Bon Alexander Stroupe pled guilty, without a plea agreement, to conspiracy to manufacture and possess with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(B), 846; and possession of pseudoephedrine with the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c). (Crim. Case No. 5:05-cr-221, Doc. No. 30: Acceptance & Entry of Guilty Plea). In the presentence report, the probation officer determined that Petitioner qualified as a career offender under § 4B1.1 of the sentencing guidelines based on four prior convictions for breaking or entering in Burke County, North Carolina. (Id., Doc. No. 50 at ¶ 23: PSR). Because Petitioner qualified as a career offender, the probation officer recommended a guidelines range of 188 to 235 months based on a total offense level of 31 and a criminal history category of VI. (Id. at ¶ 72).

         After adopting the presentence report, this Court sentenced Petitioner to 181 months in prison, giving Petitioner credit for the time he served in state court on the instant offense. (Id., Doc. No. 37: Judgment). This Court entered judgment on June 30, 2006, and Petitioner appealed. (Id., Doc. No. 39: Notice of Appeal). The United States Court of Appeals for the Fourth Circuit affirmed in an unpublished opinion issued October 22, 2007. (Id., Doc. No. 55). Petitioner did not file a petition for a writ of certiorari with the United States Supreme Court.

         About four years later, Petitioner filed the instant motion to vacate his career-offender sentence under § 2255, contending that his breaking and entering convictions do not qualify as felonies in light of the Fourth Circuit's en banc decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). (Civ. Doc. No. 1). Petitioner filed several amendments to his motion, supplementing his argument under § 2255. (Civ. Doc. No. 3, 4, 8, 16, 24). In an order dated December 2, 2013, this Court directed the Government to respond to Petitioner's Simmons claim. (Civ. Doc. No. 11). The Government filed a response, seeking dismissal of Petitioner's Simmons claim as time-barred and non-cognizable under § 2255. (Civ. Doc. No. 13). The case was then held in abeyance pending resolution of Whiteside v. United States, 775 F.3d 180 (4th Cir. 2014). (Doc. No. 15). In August 2015, the stay was lifted, and the Government was ordered to respond. (Civ. Doc. No. 23). On August 18, 2015, Petitioner sought to supplement his motion to vacate to add a claim that his sentence as a career offender violates due process pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (Civ. Doc. No. 24).

         On October 29, 2015, the Government filed a Supplemental Response, addressing Petitioner's Johnson claim. (Doc. No. 29). The parties thereafter filed several memoranda addressing Petitioner's Johnson claim. (Doc. Nos. 30, 31, 34, 35). On September 26, 2016, the Court granted Petitioner's motion to stay pending Beckles v. United States, 137 S.Ct. 886 (2017). (Doc. No. 37). On March 6, 2017, the Supreme Court held in Beckles that Johnson does not apply to the federal sentencing guidelines. In other words, the Beckles Court held that, the federal sentencing guidelines, including § 4B1.2(a)'s residual clause, are not subject to vagueness challenges under the Fifth Amendment's Due Process Clause. (Id. at 890). In light of Beckles, the Government filed an additional memorandum on May 5, 2017. (Doc. No. 38). This matter is now ripe for disposition.

         II. STANDARD OF REVIEW

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the argument presented by the Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         A. Petitioner's Simmons Claim

         Petitioner first contends that he is entitled to relief under Simmons, in which the Fourth Circuit determined that a prior conviction under North Carolina law is punishable by more than one year of imprisonment only if that defendant's conviction, based on his individual offense characteristics and criminal history, allowed for such a sentence. United States v. Simmons, 649 F.3d 237, 244 (4th Cir. 2011). Petitioner contends that because he did not receive more than one year in prison for any of his North Carolina breaking or entering convictions, he no longer has the predicate convictions to qualify as a career offender. In response, the Government contends that Petitioner's Simmons claim is untimely and should therefore be dismissed. For the following reasons, the Court agrees with the Government that Petitioner's Simmons claim is time-barred.

         Paragraph 6 of 28 U.S.C. § 2255, which applies to initial motions to vacate, provides generally for a one-year statute of limitations from the date on which a petitioner's judgment becomes final. 28 U.S.C. § 2255(f)(1). Here, Petitioner's judgment became final ninety days after the Fourth Circuit affirmed this Court's judgment, when Petitioner's time for filing a petition seeking a writ of certiorari from the Supreme Court expired. See Clay v. United States, 537 U.S. 522, 525 (2003). Petitioner's motion, filed four years later, is therefore untimely under the one-year statute of limitations. Petitioner contends, however, that his motion is timely either because he filed within one year of the new “fact” of Simmons or, alternatively, because he is entitled to equitable tolling. Because Petitioner's motion does not qualify for either exception, his motion will be dismissed.

         Section 2255(f)(4) allows for a one-year time period for filing an initial § 2255 motion after “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” “Facts” as used in § 2255(f)(4) refers to an actual or alleged event or circumstance, not to the date a petitioner recognizes their legal significance. United States v. Pollard, 416 F.3d 48, 55 (D.C. Cir. 2005). Section 2255(f)(4), therefore, may not be used to reopen the time period for filing an initial § 2255 petition on the basis of new legal authority; rather “subsequent interpretations of the law can be the basis of delay in filing a § 2255 motion only in accordance with § 2255(f)(3).” Sun Bear v. United States, 644 F.3d 700, 702 n.5 (8th Cir. 2011) (en banc) (internal quotations omitted). Petitioner does not allege that he recently discovered any new facts pertinent to his ...


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