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 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).
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. (Id., Doc. No. 53).
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).
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
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).
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).
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).
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).
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.
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).
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).
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 ...