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Graham v. United States

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

April 9, 2018

NATHANIEL GRAHAM, 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), Motion to Amend/Correct, (Doc. No. 2), and Motion for Order to Show Cause, (Doc. No. 4).

         I. BACKGROUND

         Petitioner was indicted along with 27 co-defendants in a RICO conspiracy. The charges pertaining to Petitioner are: Count (1), conspiracy to participate in racketeering activity based on multiple acts involving murder, bribery, robbery, controlled substance felonies, the illegal use of a communication facility, and Hobbs Act offenses; and Count (14), conspiracy to commit murder in aid of racketeering activity. (3:12-cr-188 at 280). A jury found him guilty of both counts as charged. (3:12-cr-188 at 494). The Court sentenced him to 240 months as to Count (1) and 120 months as to Count (2), concurrent, followed by three years of supervised release. (3:12-cr-188 at 837).

         Petitioner argued on direct appeal that he was entitled to judgment of acquittal because the government's evidence did not establish his guilt beyond a reasonable doubt and that the evidence required a jury instruction on withdrawal from a conspiracy. The Fourth Circuit affirmed in an opinion issued February 9, 2016. United States v. McIntyre, 639 Fed.Appx. 171, 172-73 (4th Cir. 2016). With regards to the sufficiency of the evidence to support Count (1), the Fourth Circuit explained that, “[t]o satisfy § 1962(d), the government must prove that an enterprise affecting interstate commerce existed; that each defendant knowingly and intentionally agreed with another person to conduct or participate in the affairs of the enterprise; and that each defendant knowingly and willfully agreed that he or some other member of the conspiracy would commit at least two racketeering acts.” McIntyre, 639 Fed.Appx. at 172-73 (citations omitted). After reviewing the sufficiency of the evidence de novo, the Fourth Circuit found that there was substantial evidence to support the jury's verdict of guilt. The Fourth Circuit also found that the Court's failure to instruct the jury on withdrawal from a conspiracy was not plain error.

         Petitioner filed his § 2255 Motion to Vacate on May 7, 2017, arguing that: (1) counsel was ineffective for failing to object that there was no evidence that he committed two predicate acts constituting a pattern of racketeering activity to support the conspiracy conviction. (Doc. No. 1). On October 6, 2017, Petitioner filed an Amended § 2255 Motion to vacate adding the following claims: (2) the Court lacked subject-matter jurisdiction to convict and sentence Petitioner for conspiracy to commit murder in aid of racketeering activity because there was no proof of an agreement to commit murder; (3) counsel was ineffective for failing to file a motion to sever Petitioner's trial from his co-defendants' trials; and (4) counsel was ineffective for failing to file a motion to suppress Petitioner's recorded conversations.

         II. MOTION TO AMEND

         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 exercise of due diligence.

28 U.S.C. § 2255(f).

         A federal judgment becomes final under § 2255(f)(1) “when [the Supreme] Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, ” or, if a petitioner does not seek certiorari, “when the time for filing a certiorari petition expires.” Gonzalez v. Thaler, 565 U.S. 134, 149 (2012) (quoting Clay v. United States, 537 U.S. 522, ...


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