United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on Petitioner's
“Motion to Vacate Sentence Under Simmons:
Petition for Relief Under 28 U.S.C. § 2241; Alternative
Petition for Writ of Coram Nobis; and Alternative
Petition for Writ of Audita Querela.” (Doc.
pled guilty in the underlying criminal case to: Count (2),
possession with intent to distribute cocaine base (21 U.S.C.
§§ 841(b)(1)(B)(iii), 851); and Count (3),
possession of a firearm in relation to a drug trafficking
crime (18 U.S.C. § 924(c)(1)). (3:04-cr-137, Doc. No.
26). The § 851 Notice was based on Petitioner's 1999
conviction for felony possession of cocaine in violation of
North Carolina law. (Id., Doc. No. 2). The Court
sentenced Petitioner to 120 months' imprisonment for
Count (2) and 60 months for Count (3), consecutive, for a
total of 180 months' imprisonment, followed by a total of
eight years of supervised release. (Id., Doc. No.
26). The Fourth Circuit Court of Appeals affirmed. United
States v. Alexander, 247 Fed.Appx. 416
filed a Motion to Vacate pursuant to 28 U.S.C. § 2255,
case number 3:08-cv- 245, that was denied and dismissed.
Alexander v. United States, 2011 WL 52864 (W.D. N.C.
Jan. 6, 2011).
filed the instant case in August 2013, arguing that the
predicate conviction for his sentencing enhancement was not
punishable by more than one year in prison pursuant to
United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc). The Government
filed unopposed motions to stay this case pending the outcome
of Surratt v. United States, 14-6851, then
United States v. Wheeler, No. 16-6073, which were
granted. See (Doc. Nos. 2, 4, 5, 8).
Petitioner filed a Motion for Amended Judgment under the
First Step Act of 2018 in the criminal case on January 18,
2019, to which the Government consented. (3:04-cr-137, Doc.
No. 62). Petitioner's sentence was reduced from 120
months to time served plus 10 days, followed by a modified
term of supervised release. (Id., Doc. No. 64).
Government has filed its Response in opposition to the
instant Petition now that Wheeler is final, 886 F.3d
415 (4th Cir. 2018) certiorari denied 139
S.Ct. 1318. The Government argues that the instant Petition
should be denied as moot because Petitioner has been released
from custody. (Doc. No. 15). Petitioner has not filed a
III, Section 2 of the United States Constitution provides
that federal Courts may adjudicate only live cases or
controversies. See Lewis v. Continental Bank Corp.,
494 U.S. 472, 477 (1990); Nakell v. Attn'y Gen. of
N.C. , 15 F.3d 319, 322 (4th Cir. 1994). This
means that the “litigant must have suffered, or be
threatened with, an actual injury traceable to the defendant
and likely to be redressed by a favorable judicial
decision.” Id. In the context of a habeas
corpus proceeding, the writ “does not act upon the
prisoner who seeks relief, but upon the person who holds him
in what is alleged to be unlawful custody.” Braden
v. 30th Jud'l Cir. Court of Ky., 410 U.S. 484,
494-95 (1973). An incarcerated convict's or parolee's
challenge to the validity of his conviction always satisfies
the case or controversy requirement, but, once a
convict's sentence has expired, some collateral
consequence of the conviction must exist if the suit is to be
maintained. Spencer v. Kemna, 523 U.S. 1, 7-8
sentence was reduced to time served plus 10 days and he has
been released from the Bureau of Prisons' custody.
Petitioner assert no collateral consequences upon which
§ 2255 or 2241 relief should be granted, so no case or
controversy presently exists. See United States v.
Hardy, 545 F.3d 280, 284 (4th Cir. 2008);
see, e.g., Williams v. United
States, 2018 WL 1612203 (W.D. N.C. April 3, 2018).
Because there is no live case or controversy before the
Court, the instant Petition will be dismissed as moot.
foregoing reasons, the instant Petition is dismissed as moot.