United States District Court, W.D. North Carolina, Charlotte Division
Reidinger, United States District Judge
matter is before the Court on the Petitioner's letter,
which the Court construes of a motion for reimbursement of
$100 Assessment Fee. [Doc. 18]. The Government opposes the
Petitioner's motion. [Doc. 20].
Petitioner pleaded guilty pursuant to a written plea
agreement to one count of armed bank robbery, and aiding and
abetting the same, in violation of 18 U.S.C. §§
2113(a), 2113(d), and 2 (Count Two); one count of armed
robbery including forcing a person to accompany him without
consent, and aiding and abetting the same, in violation of 18
U.S.C. §§ 2113(a), 2113(d), 2113(e), and 2 (Count
Three); and two counts of armed bank robbery, and aiding and
abetting the same, in violation of 18 U.S.C. § 2113(d)
and 2 (Counts Six and Nine). [Criminal Case No.
3:09-cr-00060-MR-1 (“CR”), Docs. 24, 26]. The
Petitioner was sentenced on April 7, 2010, to a term of 300
months' imprisonment on Count Two; a term of 300
months' imprisonment on Count Three, to run concurrently
with Count Two; a term of 108 months' imprisonment on
Count Six, to run concurrently with Count Nine; and a term of
108 months' imprisonment on Count Nine, to run
consecutively to the terms imposed in Counts Two and Three,
for a total of 408 months' imprisonment. [CR Doc. 45].
The Petitioner was ordered to pay court-appointed counsel
fees, restitution in the amount of $49, 467.59, and a special
assessment fee of $100.00 for each count of conviction,
totaling $400.00. [Id.].
Petitioner appealed [CR Doc. 47], and the Fourth Circuit
Court of Appeals affirmed his conviction and sentence on June
30, 2011. See United States v. Arellano, 436 F.
App'x 152 (4th Cir. 2011) (unpublished). The Petitioner
filed a petition for writ of certiorari with the United
States Supreme Court, which was denied on November 7, 2011.
Arellano v. United States, 132 S.Ct. 560 (2011).
November 6, 2012, the Petitioner filed a motion to vacate
pursuant to 28 U.S.C. § 2255. [Doc. 1]. On June 11,
2015, the Court entered an Order granting in part and denying
in part the Petitioner's motion. Specifically, the Court
held that the Petitioner's second and third counts of
conviction (Counts Two and Three, respectively) were
multiplicitous and that counsel's failure to raise a
challenge on these grounds constituted ineffective
assistance. [CR Doc. 66]. Accordingly, the Court entered an
Amended Judgment vacating Petitioner's conviction and
sentence as to Count Two while simultaneously affirming the
Petitioner's convictions and sentences as to Counts
Three, Six, and Nine, as well as the sentences pronounced
thereon. [CR Doc. 67]. The Amended Judgment still ordered the
Petitioner to pay court-appointed counsel fees, restitution
in the amount of $49, 467.59, and a $100 special assessment
for each count of conviction (now reduced to a total fee of
$300 in light of the vacating of Count Two). Because the
sentence for Count Two was concurrent with the sentence for
Count Three, the total 408-month term of imprisonment
remained undisturbed. [Id.]. In all other respects,
the remaining claims asserted by the Petitioner were denied
and dismissed. The Petitioner appealed, but the Fourth
Circuit dismissed his appeal and denied a certificate of
appealability on November 20, 2015. [CR Doc. 70].
Petitioner now returns to this Court, asking the Court to
reimburse him the $100 special assessment fee paid with
respect to the vacated conviction for Count Two. [Doc. 18].
Petitioner's request must be denied. First, the
Petitioner's request is untimely and procedurally barred,
as he failed to raise this matter on direct appeal. In any
event, however, the Petitioner's request is without
merit. The Amended Judgment provides that “[p]ayment
shall be applied in the following order: (1) assessment, (2)
restitution principal . . . .” [CR Doc. 67 at 6]. In
accordance with that provision, when the Amended Judgment was
entered vacating one count of conviction and thus lowering
the Petitioner's special assessment fee from $400.00 to
$300.00, that $100.00 was reallocated from his special
assessment total and applied toward his outstanding criminal
restitution, which stands at $42, 014.83. [See Doc.
20-1]. The Petitioner is not entitled to reimbursement of
that special assessment fee. Accordingly, the
Petitioner's request for reimbursement is denied.
Court finds that the Petitioner has not made a substantial
showing of a denial of a constitutional right. See
generally 28 U.S.C. § 2253(c)(2); see also
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in
order to satisfy § 2253(c), a “petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong”) (citing Slack v. McDaniel, 529 U.S.
473, 484-85 (2000)). Petitioner has failed to demonstrate
both that this Court's dispositive procedural rulings are
debatable, and that the Motion to Vacate states a debatable
claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). As a result, the
Court declines to issue a certificate of appealability.
See Rule 11(a), Rules Governing Section 2255
Proceedings for the United States District Courts, 28 U.S.C.
IS, THEREFORE, ORDERED that the Petitioner's
letter, which the Court construes of a motion for
reimbursement of $100 Assessment Fee [Doc. 18], is
IS FURTHER ORDERED that the Court declines to issue
a certificate of appealability.