United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge.
MATTER comes before the Court on Petitioner's
pro se letter that is liberally
construed as a motion for relief from judgment
pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure. (Doc. No. 24).
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
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.
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.
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 ...