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). Also pending are a Motion
to Expedite, (Doc. No. 2), and Motion Seeking Leave to Amend
§ 2255 Motion to Vacate, (Doc. No. 3).
was charged along with five co-defendants in a drug
trafficking conspiracy in the underlying criminal case.
(5:07-cr-23, Doc. No. 3). A jury found him guilty of: Count
(1), conspiracy to possess with intent to distribute five
kilograms or more of cocaine and 50 grams or more of cocaine
base; Count (3), possession with intent to distribute five
grams more of cocaine base and a detectable amount of powder
cocaine; Count (4), possession of a firearm in furtherance of
a drug trafficking crime; and Count (5), possession of a
firearm by a convicted felon. (5:07-cr-23, Doc. No. 112). In
an order docketed on October 16, 2008, the Court adjudicated
him guilty and sentenced him to life imprisonment plus sixty
months, followed by a total of 10 years of supervised
release. (5:07-cr-23, Doc. No. 130). The Fourth Circuit Court
of Appeals affirmed, United States v. Henderson, 380
Fed.Appx. 295 (4th Cir. 2010), and the United
States Supreme Court denied certiorari, Henderson v.
United States, 562 U.S. 972 (2010), 562 U.S. 1015
filed a § 2255 Motion to Vacate on October 1, 2011, that
was open as a new civil case, number 5:11-cv-147. The Court
vacated his § 922(g)(1) conviction in Count (5) and
granted resentencing in light of United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011), and
denied the remaining claims. Henderson v. United
States, 2013 WL 6709729 (W.D. N.C. Dec. 18, 2013). The
Court entered an Amended Judgment on May 5, 2014, dismissing
the § 922(g)(1) count and reducing the sentence to a
total of 248 months (188 months as to counts (1)-(3),
concurrent, and 60 months as to Count (4), consecutive).
(5:07-cr-23, Doc. No. 232). Petitioner appealed and the
Fourth Circuit remanded the matter for the limited purpose of
redetermining the length of Petitioner's supervised
release. (5:07-cr-23, Doc. No. 250). The Court docketed an
Amended Judgment on August 5, 2015, clarifying that the total
term of supervised release is five years. (5:07-cr-23, Doc.
No. 255). Petitioner's counsel filed a memorandum brief
pursuant to Anders v. Calinfornia, 386 U.S. 738
(1967), on appeal. The Fourth Circuit affirmed in part and
dismissed in part, United States v. Henderson, 631
Fed.Appx. 118 (4th Cir. 2015), and denied
rehearing and rehearing en banc on January 20, 2016,
(5:07-cr-23, Doc. No. 261).
Petitioner filed a motion for sentence reduction under 18
U.S.C. § 3582(c)(2), pursuant to U.S. Sentencing
Guideline Amendment 782. (5:07-cr-23, Doc. No. 251). The
Court granted relief and, on December 28, 2015, reduced the
sentence to a total of 211 months' imprisonment.
(5:07-cr-23, Doc. No. 260).
filed the instant § 2255 Motion to Vacate on June 9,
2017, (Doc. No. 1). He raises claims of ineffective
assistance of counsel and trial court error. With regards to
timeliness, he states: “Petitioner's MOTION 2255 is
timely because challenge of subject matter jurisdiction can
be raised at any time. Also the petitioner's application
is timely filed under 2255's one year limitation pursuant
to the AEDPA of the United States Code and Rule
Manual.” (Doc. No. 1 at 10).
STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a).
one-year statute of limitation applies to motions to vacate
under § 2255, which runs 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, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the