United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District 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 his motion for the
appointment of counsel, (Doc. No. 2) .
pled guilty to one count of conspiracy to possess with intent
to distribute cocaine and cocaine base. (5:06-cr-22, Doc. No.
709). The Court entered its judgment sentencing Petitioner to
324 months' imprisonment on May 1, 2008. (Id.).
The Fourth Circuit Court of Appeals dismissed
Petitioner's appeal on October 13, 2009. (Id.,
Doc. No. 894).
2, 2012, Petitioner filed a motion to vacate pursuant to 28
U.S.C. § 2255 that was opened in a separate civil case,
number 5:12-cv-56. See (Id., Doc. No. 979). The
Court dismissed the motion to vacate with prejudice as
time-barred. Felder v. United States, 2015 WL
1602076 (W.D. N.C. April 9, 2015). The Fourth Circuit
dismissed Petitioner's appeal on July 28, 2015.
United States v. Felder, 610 Fed.Appx. 320
(4th Cir. 2015). Petitioner filed a Rule 60(b)
motion for relief from judgment on March 8, 2016, which this
Court denied on May 1, 2017. (5:12-cv-56, Doc. Nos. 22, 23).
in the criminal case, on June 29, 2012, counsel filed a
motion to reduce Petitioner's sentence pursuant to 18
U.S.C. § 3582, seeking relief under the amended crack
guidelines. (5:06-cr-22, Doc. No. 1006). The Court granted
relief on January 15, 2013, and reduced Petitioner's
sentence to 262 months' imprisonment. (Id., Doc.
August 24, 2015, counsel filed a second § 3582 motion to
reduce Petitioner's sentence, arguing that the sentenced
should be reduced pursuant to U.S. Sentencing Guideline
Amendment 782. (Id., Doc. No. 1175). The Court
agreed and, on January 8, 2016, reduced Petitioner's
sentence to the statutory minimum of 240 months'
imprisonment pursuant to 21 U.S.C. § 851. (Id.,
Doc. No. 1215).
filed the instant § 2255 motion to vacate on June 9,
2017. (Doc. No. 1). He argues that the Court lacked
jurisdiction to resentence him with a recidivist enhancement
in light of United States v. Simmons, 649 F.3d 237
(4th Cir. 2011). Petitioner appears to argue that the §
2255 motion to vacate is not successive, and is timely,
because the January 8, 2016, Order is a new judgment pursuant
to Magwood v. Patterson, 561 U.S. 320 (2010), and
In re Gray, 850 F.3d 139, 143 (4th Cir. 2017).
Petitioner also asks that the Government waive enforcement of
the plea agreement's waiver provision. He seeks
resentencing without application of the statutory mandatory
minimum of 240 months' imprisonment. He has filed a
motion for the appointment of counsel. (Doc. No. 2).
MOTION FOR THE APPOINTMENT OF COUNSEL
a criminal proceeding in which the Court must appoint counsel
to represent an indigent defendant, the Court has discretion
to appoint counsel in a civil action, including motions to
vacate pursuant to § 2255. See 28 U.S.C. §
1915(e)(1). A court should appoint counsel to represent an
indigent party only if that party has shown a particular need
or exceptional circumstances. See Cook v. Bounds,
518 F.2d 779, 780 (4th Cir. 1975).
has not shown any exceptional circumstance why he cannot
proceed without counsel. Therefore, his motion for the
appointment of counsel is denied.
STANDARD OF REVIEW
to 28 U.S.C. § 2255, a prisoner in federal custody may
move the court which imposed his sentence to vacate, set
aside, or correct the sentence if it was imposed in violation
of federal constitutional or statutory law, was imposed
without proper jurisdiction, is in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack. 28 U.S.C. § 2255(a).
one-year statute of limitation applies to motions to vacate
under § ...