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Cuthrell v. United States

United States District Court, M.D. North Carolina

August 7, 2017

DWAYNE LANNY CUTHRELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld, United States Magistrate Judge

         This case comes before the undersigned United States Magistrate Judge for recommended rulings on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”) (Docket Entry 72), Motion to Supplement Petition (“Supplement Motion”) (Docket Entry 83), and Request to File Amendment to 2255 (“Amendment Motion”) (Docket Entry 105).[1] For the reasons that follow, the Court should dismiss Petitioner's Section 2255 Motion as untimely (or, in the alternative, deny it as meritless) and should deny his Supplement Motion and Amendment Motion as futile.

         INTRODUCTION

         This Court (per United States District Judge Thomas D. Schroeder) entered a Judgment against Petitioner imposing, inter alia, a prison term of 160 months, upon his guilty plea to conspiracy to distribute cocaine hydrochloride in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). (Docket Entry 43; see also Docket Entry 1 (Indictment); Docket Entry 23 (Plea Agt.); Docket Entry 48 (Plea Hrg. Tr.); Docket Entry 49 (Sent'g Hrg. Tr.); Docket Entry 129 (Presentence Report (“PSR”)).) Petitioner appealed (see Docket Entry 40), but (on August 27, 2012) the United States Court of Appeals for the Fourth Circuit affirmed, United States v. Cuthrell, 475 F. App'x 889 (4th Cir. 2012). He did not seek review by the United States Supreme Court. (Docket Entry 72, ¶ 9(g).)

         On July 30, 2014, Petitioner submitted his Section 2255 Motion (see Docket Entry 72, Decl. ¶), with a supporting brief (Docket Entry 73). He asserted one ground for relief, i.e., that his counsel acted ineffectively by “fail[ing] to object to the career offender enhancement based upon the fact that . . . under North Carolina law[ Petitioner] only received one consolidated sentence [for the two robbery convictions the PSR treated as separate predicates due to an intervening arrest].” (Docket Entry 72, ¶ 12; see also Docket Entry 49 at 20-21 (adopting PSR's career offender finding, resulting in advisory guideline range of 151-188 months in prison); Docket Entry 73 at 1-2 (“[Petitioner's] career offender classification . . . was imposed in violation of [his] Sixth Amendment right to effective assistance of counsel . . . . [He] was enhanced as a career offender because of ‘multiple' sentences out of North Carolina. However, these sentences were not ‘multiple' sentences. Rather, [he] received one ‘consolidated sentence'.” (emphasis in original) (citing United States v. Davis, 720 F.3d 215 (4th Cir. 2013) (ruling that North Carolina convictions consolidated for sentencing do not constitute separate career offender predicates even if intervening arrest occurred)); Docket Entry 129, ¶¶ 25 (“[Petitioner] has been convicted of Felony Common Law Robbery (06CRS79892) and Felony Common Law Robbery (06CRS86570), crimes of violence. Since the instant offense is a controlled substance offense and [he] was 18 years or older at the time of the offense, [he] is a career offender within the meaning of USSG §4B1.1. The offense level determined under USSG §4B1.1 is 32 rather than [28 as] calculated [under USSG §2D1.1].”), 50 (“The total of the criminal history points is 9. According to the sentencing table (Chapter 5, Part A), 9 criminal history points establish a Criminal History Category of IV. However . . ., [Petitioner] is a career offender. A career offender's Criminal History Category in every case shall be Category VI.”).)

         After the United States responded to Petitioner's Section 2255 Motion (Docket Entry 82), the Clerk received Petitioner's Supplement Motion (Docket Entry 83) and (proposed) Supplement to 2255 Petition (“Proposed Supplement”) (Docket Entry 84), both of which he mailed on January 27, 2015 (see Docket Entry 83 at 2; Docket Entry 84 at 3). The Proposed Supplement includes a new “Ground for Relief Number Two” asserting that, “[d]ue to a clerical error, [Petitioner] has been sentenced as a career offender, violating his Fourteenth Amendment right to due process under the law.” (Docket Entry 84 at 1 (bold font omitted) (standard capitalization applied); see also id. at 2 (“When the probation department prepared the [PSR], [it] reported, in error, that [Petitioner's] North Carolina state [robbery] convictions were separate convictions.” (citing Davis)).)[2]

         The Clerk subsequently received Petitioner's Amendment Motion “asking permission to amend [his Section 2255 Motion] in light of . . . Johnson v. U[nited] S[tates], [ ___ U.S. ___, ] 135 S.Ct. [2551] [(2015)].” (Docket Entry 105 at 1.) He also submitted a new motion under Section 2255 (“Proposed Second Section 2255 Motion”) (Docket Entry 107) and a related amendment (“Proposed Amended Second Section 2255 Motion”) (Docket Entry 114).[3]

         Petitioner's Proposed Second Section 2255 Motion identifies these three proposed claims:

1) “Whether the United States Supreme Court ruling in Johnson case applies to [Petitioner's] case” (Docket Entry 107, ¶ 12.A. (standard capitalization applied));
2) “Whether the United States Sentencing Commission ruling the residual [clause] in the career offender guidelines unconstitutionally vague applies to [Petitioner]” (id., ¶ 12.B. (standard capitalization applied)); and
3) “Whether the Supreme Court case of Welch v. United States[, ___ U.S. ___, 136 S.Ct. 1257 (2016), ] makes finally [sic] that the Johnson case is retroactive” (id., ¶ 12.C. (standard capitalization applied)).

         Petitioner's Proposed Amended Second Section 2255 Motion states:

1. Petitioner hereby amends and supplements his [Proposed Second Section 2255] Motion by adding as an additional ground for relief the following: The use of his prior consolidated common law robbery under 4B1.4 (career-offender statute) was a violation of his due process rights under Johnson . . . and
2. The offenses of common law robbery no longer qualify as a “violent felony” after the Supreme Court's decision in Johnson. And also in United States v. Gardner[, 823 F.3d 793 (4th Cir. 2016), ] where Gardner was career out [sic] do [sic] to (3) prior common law robberys [sic] in North Carolina but later challenged ...

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