United States District Court, W.D. North Carolina, Charlotte Division
MICAH T. HAYES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
S. Cayer, United States Magistrate Judge
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1), and the Government's
Motion to Dismiss, (Doc. No. 4).
Micah T. Hayes was charged with driving while under the
influence on the United States Army base at Fort Bragg, North
Carolina in violation of 18 U.S.C. § 13, which
assimilates North Carolina General Statute § 20-138.1
(Count One), and carrying a concealed weapon after consuming
alcohol in violation of 18 U.S.C. § 13, which
assimilates North Carolina General Statute §
14-415.11(c) (Count Two). United States v. Hayes,
5:13MJ1232 (E.D. N.C. July 10, 2013), ECF No. 1. Petitioner
pleaded guilty to Count One in the United States District
Court for the Eastern District of North Carolina and was
sentenced to one year of probation, commencing on July 10,
2013. (Id., ECF Nos. 11 & 12). The Government
dismissed Count Two. (Id., ECF No. 11). The Eastern
District of North Carolina transferred jurisdiction to this
District in September 2013. (Id., ECF No. 12).
months later, Petitioner violated the terms of his probation
and was arrested. United States v. Hayes, 3:13MJ288
(W.D. N.C. 2013), ECF entry of Dec. 19, 2013. He admitted
violating the conditions of probation, and this Court
sentenced him to an additional year of probation to commence
at the end of the original term in July 2014. (Id.,
ECF No. 9). This Court entered judgment on February 7, 2014.
January 10, 2015, Petitioner was charged in state court with
assault with a deadly weapon with intent to kill inflicting
serious injury. See (Doc. No. 4-1, Gov. Ex. 1). He
was convicted in June 2015 and sentenced to eight years and
four months of imprisonment. (Id.). He is currently
incarcerated at the Piedmont Correctional Institution in
Salisbury, North Carolina. (Id.).
filed the present Motion to Vacate on July 24, 2017, arguing
that he is being subjected to cruel and unusual punishment
because this Court has not terminated his probationary
sentence. He also alleges ineffective assistance of counsel
during the 2013 revocation proceedings because his attorney
did not advise him of his right to appeal. (Civ. Doc. No. 1
at 4-5, 13). The Government filed the pending Motion to
Dismiss on December 4, 2017. (Doc. No. 4). On December 6,
2017, this Court issued an Order advising Petitioner of his
right to respond to the Government's Motion. (Doc. No.
5). Petitioner filed his Reply on December 14, 2017. (Doc.
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, the Court
finds that the Motion to Vacate can be resolved without a
response from the Government or an evidentiary hearing based
upon the record and governing case law. See Raines v.
United States, 423 F.2d 526, 529 (4th Cir. 1970).
1996, Congress enacted the Anti-Terrorism and Effective Death
Penalty Act (the “AEDPA”). The AEDPA amended 28
U.S.C. § 2255 by imposing a one-year statute of
limitations for filing a motion to vacate. That amendment
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
of-(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court and made retroactively
applicable to ...