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Ingram v. United States

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

September 29, 2017

SHIRLEY INGRAM, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney, Chief United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion for Summary Judgment, (Doc. No. 11), which is construed as the operative Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, as well as several pending motions, (Doc. Nos. 2-11).

         I. BACKGROUND

         Petitioner was charged by superseding indictment with: Count (1), possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1); and Count (2), possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1) and 3559(c). (Crim. Case No. 3:10-cr-69-FDW, Doc. No. 25). A jury found Petitioner guilty of both counts.[1] (Id., Doc. No. 53).

         The Presentence Investigation Report (“PSR”) scored the base offense level for Count (1) as 14 because the offense was a violation of § 922. (Id., Doc. No. 68 at ¶ 14). Petitioner is an Armed Career Criminal because he had at least three prior convictions for a violent felony or serious drug offense, or both, which were committed on different occasions: breaking and entering (76CR49165 & 76CR43321); breaking and entering and larceny (80CRS52187); preparation to commit burglary (83CR68062); second-degree kidnapping (87CRS18069); breaking and entering (87CRS18071); and breaking and entering (86CRS14807). Therefore, he is subject to an enhanced sentence under 924(e) and the total offense level is 33 pursuant to United States Sentencing Guidelines § 4B1.4. (Id., Doc. No. 68 at ¶ 33). As to Count (2), the guidelines for a violation of § 924(c) is the term of imprisonment is required by statute. (Id., Doc. No. 68 at ¶ 23). The PSR's criminal history section scores seven criminal history points, but a maximum of four points are counted under U.S.S.G. § 4A1.1(c), and the criminal history category is III. (PSR ¶ 50-51). However, Petitioner is an Armed Career Criminal so the criminal history category is IV. (PSR ¶ 51). The resulting guidelines range was: 188 to 235 months' imprisonment followed by at least two years but not more than five years of supervised release, and fines between $17, 500 and $175, 000. (PSR ¶¶ 121, 125, 130).

         The Court adopted the PSR without change, adjudicated Petitioner guilty of Counts (1) and (2), and sentenced him to a total of 240 months' imprisonment comprised of 180 as to Count (1) and 60 months, consecutive, as to Count (2), followed by three years of supervised release. (Cr-DE# 79); see (Cr-DE# 80).

         Petitioner argued on direct appeal that the Court erred by: (1) failing to suppress evidence found following third-party consent to search his vehicle; (2) denying his Rule 29 motion for judgment of acquittal; (3) designating him an Armed Career Criminal by relying on prior convictions that do not qualify as predicate offenses; and (4) imposing an ACCA sentence based on facts not alleged in the indictment and proved to a jury beyond a reasonable doubt. The Fourth Circuit affirmed on January 8, 2015. United States v. Ingram, 597 Fed.Appx. 151 (4th Cir. 2015). It held regarding Petitioner's ACCA claim that its “recent decision in United States v. Mungro, 754 F.3d 267 (4th Cir. 2014), … holding that § 14-54(a) convictions qualify as ACCA predicate convictions, forecloses this argument….” Ingram, 597 Fed.Appx. at 153. The United States Supreme Court denied certiorari on June 8, 2015. Ingram v. United States, 135 S.Ct. 2823 (2015).

         On April 27, 2015, Petitioner filed a “Request for an Indicative Ruling on this Motion for Relief that is Currently Barred by a Pending Appeal” in the criminal case, raising claims of trial court error and ineffective assistance of counsel. (Crim. Case No. 3:10-cr-69-FDW, Doc. No 96). On May 13, 2015, the Court issued an Order regarding its intent to recharacterize the motion as a § 2255 motion to vacate pursuant to Castro v. United States, 540 U.S. 375 (2003), and ordered Petitioner to respond within 30 days. (Id., Doc. No. 97). Petitioner filed a motion to withdraw his pleading, (Id., Doc. No. 98), which the Court granted on June 5, 2015, (Id., Doc. No. 102). Petitioner filed a notice of appeal with regards to the Castro order, which the Fourth Circuit dismissed for lack of jurisdiction on September 2, 2015. (Id., Doc. No. 99, 103, 107).

         On September 8, 2015, Petitioner resubmitted his “Request for Indicative Ruling…, ” and filed a motion for leave to amend on September 22, 2015. (Crim. Case No. 3:10-cr-69-FDW, Doc. Nos. 106, 108); see (Id., Doc. No. 105). The Court mailed Petitioner a second Castro Order regarding recharacterization, (Crim. Case No. 3:10-cr-69-FDW, Doc. No. 109), and Petitioner responded by filing an Amended Rule 37 Motion. (Crim. Case No. 3:10-cr-69-FDW, Doc. No. 110). In it, he raises a number of claims of trial court error, and ineffective assistance of trial and appellate counsel. The Clerk opened the pleadings in the instant civil case as a § 2255 proceeding. See (Doc. Nos. 1-3).

         On January 13, 2016, Petitioner filed a “Motion for Leave to File Supplemental Brief” in which he argued that a conviction under the North Carolina burglary statute, N.C. Gen. Stat. § 14-54, no longer qualifies for ACCA sentencing pursuant to Mathis v. United States, 136 S.Ct. 2243 (2016). (Doc. No. 7); (Crim. Case No. 3:10-cr-69-FDW, Doc. Nos. 111, 115); see also (Doc. No. 4) (“Motion for Leave to Supplement Brief”). On June 13, 2016, Petitioner filed a “Motion for Leave to File Supplemental Brief” in which he argued that his conviction for second-degree kidnapping cannot support ACCA sentencing pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. No. 5).

         Petitioner filed a letter seeking sentencing reduction that was docketed in the criminal case on June 28, 2016. (Crim. Case No. 3:10-cr-69-FDW, Doc. No. 112). The Court denied the motion to reduce sentence on July 6, 2016. (Id., Doc. No. 114).

         Meanwhile, Petitioner filed motions to expedite and for the appointment of counsel in the § 2255 proceedings se. (Doc. Nos. 6, 8); (Crim. Case No. 3:10-cr-69-FDW, Doc. No. 116).

         On May 11, 2017, Petitioner filed a “Request for Leave to Withdraw Prior Supplements and Replace With the Concurrently Filed Supplement” in which he seeks to withdraw and restate his Johnson claims. (Doc. No. 9). On June 20, 2017, he sought to withdraw his motion for leave to add a Johnson claim, as well as his motions to expedite and for the appointment of counsel. (Doc. No. 10).

         On June 20, 2017, Petitioner filed the insant “Request for Summary Judgment, ” (Doc. No. 11), in which he seeks immediate release based on his Mathis claim that North Carolina burglary is not an ACCA predicate offense, and asks the Court to “ignore all other ...


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