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Farmer v. United States

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

July 17, 2017

JOSAND FARMER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANNAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court on the following motions filed by petitioner: 1) a motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 275); 2) a motion to proceed pro se (DE 289); 3) a motion challenging § 851 enhancement (DE 296); 4) a motion to dismiss indictment (DE 305); and 5) a motion to remand (DE 308). The issues raised are ripe for ruling. For the reasons that follow, the court denies petitioner's motion to vacate, denies as moot petitioner's motion to proceed pro s e, dismisses petitioner's motion challenging § 851 enhancement, dismisses petitioner's motion to dismiss indictment, and dismisses petitioner's motion to remand.

         BACKGROUND

         On August 4, 2010, petitioner was charged in three counts of an eight-count indictment with the following: conspiracy to distribute and possess with the intent to distribute 50 grams or more of cocaine base (crack), one kilogram or more of phencyclidine (PCP) and a quantity of three, four methylenedioxymethamphetamine (MDMA), in violation of 21 U.S.C. § 846 (Count One); distribution of five grams or more of cocaine base (crack) and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Three); and distribution of a quantity of cocaine base (crack) and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Seven).

         At petitioner's arraignment, held on February 14, 2011, he pleaded not guilty. Following a four-day jury trial, petitioner was found guilty of all three counts. On September 26, 2011, this court sentenced petitioner to 360 months imprisonment on each of Counts One, Three, and Seven, to be served concurrently for a total of 360 months. Petitioner appealed his judgment, and the Fourth Circuit Court of Appeals affirmed. See United States v. Farmer, 482 F.App'x 805 (4th Cir. 2012) (per curiam). Petitioner did not file a petition for certiorari with the Supreme Court.

         On November 5, 2012, petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255. The motion was denied on December 20, 2013. On June 21, 2016, the Fourth Circuit Court of Appeals granted authorization for petitioner to file a second or successive § 2255 motion. On June 26, 2016, petitioner, through appointed counsel, filed the instant § 2255 motion, arguing that in light of Johnson v. United States, 135 S.Ct. 2551 (2015), he no longer qualifies as a career offender subject to an enhanced sentence.[1]

         On August 2, 2016, this court stayed the case pending the Supreme Court's final decision in Beckles v. United States, No. 15-8544. On March 14, 2017, this court lifted the stay. Petitioner was directed to show cause, within thirty days, why his § 2255 motion should not be dismissed in light of Beckles v. United States, 137 S.Ct. 886 (2017).

         On November 7, 2016, petitioner filed his motion to proceed pro se. On February 2, 2017, petitioner filed a motion challenging § 851 enhancement, arguing that the government failed to comply with the statutory requirements of his § 851 enhancement. On March 30, 2017, petitioner's appointed counsel withdrew from representation. Then, on April 27, 2017, petitioner filed his motion to dismiss indictment. In his motion, petitioner argues that his indictment must be dismissed for lack of subject matter jurisdiction. Finally, on May 30, 2017, petitioner filed his motion to remand, in which he argues that removal was improper and requests an order remanding his case to Superior Court in Wilson, North Carlina.

         COURT'S DISCUSSION

         A. Standard of Review

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).

         B. Analysis

         1. Motion to Proceed Pro Se

         In petitioner's initial motion before this court, he seeks permission to proceed pro se on his § 2255 motion. See Mot. Proceed (DE 289). Permission is not necessary to proceed pro se because petitioner's appointed counsel withdrew on March 30, 2017. ...


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