United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255, (Doc. No. 1), and on the
Government's Motion to Dismiss for Lack of Jurisdiction,
(Doc. No. 3).
Petitioner Everton Bartley Bartley, a Jamaican national,
conspired to smuggle multiple shipments of powder cocaine
from Jamaica into the United States, where the cocaine was
converted into crack cocaine and distributed in North
Carolina and elsewhere. See (Case No. 3:04cv511,
Doc. No. 12 at 3). Petitioner was a co-leader of the
conspiracy. (Id.). Petitioner, and five of his
co-conspirators, were indicted and charged with conspiracy to
possess with intent to distribute 500 grams or more of powder
cocaine and 50 grams or more of crack cocaine, in violation
of 21 U.S.C. §§ 841(b)(1), 846, 851; and conspiracy
to import 500 grams or more of powder cocaine, in violation
of 21 U.S.C. § 952, 963, 960. (Id. at 2).
September 26, 2001, the Government filed a 21 U.S.C. §
851 Information, noticing Petitioner's nine prior felony
drug convictions: a 1992 New Jersey conviction for possession
of marijuana with intent to distribute; a March 1996 New
Jersey conviction for the manufacture and distribution of a
controlled substance; an April 1996 New Jersey conviction for
possession with intent to distribute cocaine; and 1994 North
Carolina convictions for possession with intent to sell and
deliver cocaine (two counts), possession with intent to sell
and deliver marijuana (two counts), felony possession of
marijuana, and maintaining a place for controlled substances.
(Crim. Case No. 3:00cr210-FDW-4, Doc. No. 94: Amended
Information Pursuant to Section 851).
convicted Petitioner of both counts of the indictment.
(Id., Doc. No. 107: Jury Verdict). Due to his prior
felony drug convictions, he was sentenced, on September 30,
2002, to a statutory mandatory minimum term of life
imprisonment on Count One and to a 20-year concurrent
sentence on Count Two. (Id., Doc. No. 139).
Petitioner appealed, arguing that his rights under the Speedy
Trial Act had been violated. See (Id., Doc.
No. 152). The Fourth Circuit affirmed, and the Supreme Court
denied his petition for a writ of certiorari.
October 2004, Petitioner filed a motion to vacate under
§ 2255, arguing that his convictions and life sentence
were imposed in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000), and Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and that he had received
ineffective assistance of counsel. (Crim. Case No.
300-cr-210-FDW-4, Doc. No. 184: Case No. 3:04cv511). This
Court denied his motion, and the Fourth Circuit denied a
certificate of Appealability and dismissed his appeal.
(Id., Doc. Nos. 199, 207). Subsequently, Petitioner
also unsuccessfully sought relief from his sentence based on
amendments to the Sentencing Guidelines. (Id., Doc.
Nos. 248, 259). Almost fourteen years after his conviction
became final, Petitioner filed the present second motion to
vacate, arguing that his predicate felony drug convictions do
not support his life sentence in light of the vacatur of one
of his state court convictions.
Petitioner had filed a prior 28 U.S.C. § 2255 motion and
had not obtained authorization under 28 U.S.C. § 2244 to
file the present motion, the Government moved to dismiss his
motion to vacate for lack of jurisdiction on August 4, 2017.
(Civ. Doc. No. 3). In response, Petitioner affirmatively
abandoned all claims, except for his argument that he is
entitled to be resentenced due to the vacatur of his April
1996 New Jersey conviction for possession with intent to
distribute cocaine. (Civ. Doc. No. 5 at 2). In light of this
concession, this Court ordered the Government to respond to
Petitioner's assertion that his motion is not successive.
(Civ. Doc. No. 6). The Government filed its supplemental
response on September 8, 2017. (Doc. No. 7). After receiving
an extension of time to file a Reply, Petitioner filed a
Reply on October 16, 2017. (Doc. No. 9).
STANDARD OF REVIEW
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 and the
Government's Response, the Court finds that the argument
presented by 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).
noted, after the Government filed its initial response,
seeking dismissal based on its argument that the petition was
successive, Petitioner filed a response, in which he
indicated that he was abandoning all of his claims except for
his argument that he is entitled to be resentenced due to the
vacatur of his April 1996 New Jersey conviction for
possession with intent to distribute cocaine. The Government
now states in its supplemental response that, in light of
Petitioner's abandonment of all claims except for the
vacatur of one of his prior convictions, his motion is not
successive. See United States v. Hairston, 754 F.3d
258, 262 (4th Cir. 2014) (holding that where the facts relied
on in a second Section 2255 motion did not exist at the time
of the first Section 2255 motion, the second motion should
not be considered successive). Therefore, he does not need
authorization from the Fourth Circuit to proceed. The
Government further argues, however, that although this Court
has jurisdiction over the motion, it should be dismissed as
untimely. For the following reasons, the Court
one-year statute of limitations applies to Section 2255
motions. 28 U.S.C. § 2255(f). This one-year period
generally begins to run on the date that the judgment of
conviction becomes final. Id. § 2255(f)(1).
However, § 2255(f)(4) provides that the one-year period
runs from “the date on which the facts supporting the
claim or claims presented could have been discovered through
the exercise of due diligence.” In 2005, the Supreme
Court held in Johnson v. United States that where a
petitioner succeeds in vacating a prior state conviction, the
limitations period begins when he receives notice of the
vacatur, “provided that he has sought [the vacatur]
with due diligence in state court, after entry of judgment in
the federal case with the enhanced sentence.” 544 U.S.
295, 298 (2005). Thus, a Section 2255 petitioner is required
to exercise reasonable diligence in challenging a state
conviction used to enhance his federal sentence.
was convicted of his federal offenses in October 2001, and he
was sentenced in September 2002. (Crim. Case No.
300-cr-210-FDW-4, Doc. No. 107: Jury Verdict; see
also Doc. Entry of Sept. 30, 2002). The Fourth Circuit
affirmed his conviction in May 2003. United States v.
Bartley, 62 F. App'x 547 (4th Cir. 2003). Petitioner
filed his first Section 2255 motion in October 2004. (Crim.
Case No. 300-cr-210-FDW-4, Doc. No. 184). Twelve years later,
in November 2016, the State of New Jersey filed a motion to
vacate Petitioner's 1996 state conviction, ...