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Henderson v. United States

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

March 21, 2018

BRIAN DARNELL HENDERSON, 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). Also pending are a Motion to Expedite, (Doc. No. 2), and Motion Seeking Leave to Amend § 2255 Motion to Vacate, (Doc. No. 3).

         I. BACKGROUND

         Petitioner 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 (2010).

         Petitioner 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).

         Meanwhile, 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).

         Petitioner 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).

         II. STANDARD OF REVIEW

         A 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).

         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 final;
(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 governmental action;
(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 ...

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