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Felder v. United States

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

January 16, 2018

GERARD MONTERO FELDER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS 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) .

         I. BACKGROUND

         Petitioner 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).

         On May 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).

         Meanwhile 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. No. 1073).

         On 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).

         Petitioner 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).

         II. MOTION FOR THE APPOINTMENT OF COUNSEL

         Unlike 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).

         Petitioner has not shown any exceptional circumstance why he cannot proceed without counsel. Therefore, his motion for the appointment of counsel is denied.

         III. STANDARD OF REVIEW

         Pursuant 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).

         A one-year statute of limitation applies to motions to vacate under § ...


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