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Mike v. United States

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

October 26, 2017

JOSEPH MIKE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr. United States District Judge.

         THIS MATTER comes before the Court on Petitioner's pro se letter that is liberally construed[1] as a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (Doc. No. 24).

         I. BACKGROUND

         Petitioner Joseph Mike pled guilty pursuant to a written plea agreement to conspiracy to possess with intent to distribute at least five kilograms of cocaine on November 4, 2005. (Case. No. 3:05-cr-46, Doc. Nos. 25, 26). Petitioner failed to appear at the sentencing hearing so the Court sentenced him in absentia on October 1, 2010, over the objection of defense counsel. (Id., Doc. Nos. 43, 82, 95). The Court sentenced Petitioner to life imprisonment and entered the judgment on October 21, 2010. (Id., Doc. No. 88). Petitioner did not appeal. He was later apprehended and began serving his sentence around August 2011. (Doc. No. 2 at 1).

         Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255 through counsel on September 26, 2011, (Doc. No. 1), arguing that former counsel was ineffective for failing to file a notice of appeal on his behalf. He subsequently filed untimely amendments through counsel and pro se claiming: (1) counsel was ineffective for pressuring Petitioner to plead guilty when he could have prevailed at trial, (Doc. No. 2); (2) the Government's filing of a § 851 notice was arbitrary and capricious, (Doc. No. 9); and (3) Petitioner was misinformed about the impact of the § 851 notice on his sentence, (Doc. No. 16). The Court denied relief on the merits of his original claim and dismissed his proposed amended motions to vacate as time-barred. (Doc. No. 17). The Fourth Circuit Court of Appeals dismissed his appeal on May 29, 2014. United States v. Mike, 573 Fed.Appx. 289 (4th Cir. 2014). The mandate issued on August 27, 2014. (Doc. No. 2014).

         Petitioner filed the instant pro se letter on September 18, 2017. (Doc. No. 24). In it, he argues that his claim of ineffective assistance with regards to the guilty plea is timely pursuant to Lee v. United States, 2017 WL 2694701, which was issued on June 23, 2017.

         II. LEGAL STANDARDS

         Rule 60 provides permits a court to correct orders and provide relief from judgment under the following circumstances:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...

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