United States District Court, W.D. North Carolina, Charlotte Division
Richard L. Voorhees 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. No. 1).
was indicted in the underlying criminal case for: Count (1),
possession with intent to distribute 50 grams of a mixture
and substance containing a detectable amount of cocaine base
(21 U.S.C. §§ 841(a), 851); Count (2), using and
carrying a firearm during and in relation to a drug
trafficking crime and possession in furtherance of a drug
trafficking crime (18 U.S.C. § 924(c)(1)); and Count
(3), possession of a firearm by a convicted felon (18 U.S.C.
§ 922(g)(1)). (3:01-cr-127, Doc. No. 1) (Indictment).
The United States filed a Notice pursuant to 21 U.S.C. §
851 notifying Petitioner that it intended to seek an enhanced
penalty for his prior conviction for a “drug felony
offense, ” i.e., his November 30, 2000 North
Carolina conviction for possession with intent to sell or
deliver cocaine. (3:01-cr-127, Doc. No. 7) (Notice of Intent
to Seek Enhanced Penalty). That same prior conviction also
supported Count (3) alleging possession of a firearm by a
convicted felon. (3:01-cr-127, Doc. No. 1) (Indictment).
Petitioner entered a straight-up guilty plea which was
accepted on January 18, 2002.
Presentence Investigation Report (“PSR”) scored
the base offense level for Count (1) as 34 based on the
quantity of drugs for which Petitioner was responsible.
(3:01-cr-127, Doc. No. 31 at ¶ 16) (PSR). Three levels
were deducted for acceptance of responsibility, resulting in
a total offense level of 31. (3:01-cr-127, Doc. No. 31 at
¶¶ 22, 23, 25). No. guideline calculations were
provided for Count (2) because a conviction of § 924(c)
requires a mandatory statutory sentence. (3:01-cr-127, Doc.
No. 31 at ¶ 26). The base offense level for Count (3)
was scored as 20 because the offense was a violation of
§ 922(g). (3:01-cr-127, Doc. No. 31 at ¶ 27). Four
levels were added because Petitioner possessed a firearm with
knowledge, intent, or reason to believe that it would be used
or possessed with another felony offense, drug trafficking.
(3:01-cr-127, Doc. No. 31 at ¶ 28). Three levels were
deducted for acceptance of responsibility, resulting in a
total offense level for Count (3) of 21. (3:01-cr-127, Doc.
No. 31 at ¶¶ 33, 34, 36). Petitioner had two
criminal history points and two more points were added
because Petitioner was on supervised probation when he
committed the instant offenses. (3:01-cr-127, Doc. No. 31 at
¶¶ 42, 43). This resulted in a total of four
criminal history points and a criminal history category of
III. (3:01-cr-127, Doc. No. 31 at ¶ 44). The resulting
guidelines imprisonment range was 135 to 168 months for
Counts (1) and (3) and a mandatory statutory sentence of five
years, consecutive, for Count (2). (3:01-cr-127, Doc. No. 31
at ¶¶ 61, 62).
Judgment docketed on October 24, 2002, the Court adjudicated
Petitioner guilty and sentenced him to 240 months'
imprisonment for Count (1), 120 months' imprisonment for
Count (3), concurrent, and 60 months for Count (3),
consecutive, followed by 10 years of supervised release for
Counts (2) and (3) and three years for Count (1), concurrent.
(3:01-cr-127, Doc. No. 21) (Judgment). Petitioner's
direct appeal was dismissed on June 25, 2003, Fourth Circuit
case number 02-4909.
filed a § 2255 Motion to Vacate in 2006 which was
dismissed as time-barred on March 2, 2006, case number
3:06-cv-83. The Fourth Circuit denied a certificate of
appealability and dismissed Petitioner's appeal.
United States v. Richardson, 199 Fed.Appx. 200
(4th Cir. 2006). Petitioner subsequently sought
authorization from the Fourth Circuit to file a second or
successive § 2255 Motion to Vacate, which was denied.
See (3:01-cr-127, Doc. No. 53) (Order).
filed two Motions seeking sentence reduction for his crack
cocaine offense pursuant to 18 U.S.C. § 3582, which were
denied because Petitioner's guideline range was unchanged
due to the mandatory statutory sentence. See
(3:01-cr-127, Doc. No. 37, 44, 45, 52) (Motions to Modify
January 19, 2017, President Obama commuted Petitioner's
total sentence of imprisonment, effective January 19, 2019,
but left the supervised release intact. (3:01-cr-127, Doc.
No. 57) (Executive Grant of Clemency).
filed the instant § 2241 Petition through counsel on
August 26, 2013. He argues that his sentence for Count (1) is
10 years longer than he should have received for violating
§ 841 and that he is actually innocent of violating
§ 922(g)(1) in Count (3) because he has never been
convicted of an offense for which he could have been
sentenced to more than one year in prison pursuant to
case has been stayed since September 29, 2016 pursuant to
United States v. Surratt, 14-6851 and United
States v. Wheeler, (4th Cir. 2018).
See (Doc. No. 7, 10). This matter is ripe for
disposition now that the Supreme Court denied certiorari in
Wheeler, 139 S.Ct. 1318 (2019).
United States has filed a Response to the § 2241
Petition arguing that the claim for sentencing relief should
be dismissed as moot because President Obama has commuted the
sentence. However, the United States agrees that the Court
should vacate Petitioner's felon-in-possession conviction
in Count (3). (Doc. No. 14).
2255 is inadequate and ineffective to test the legality of a
sentence under the “savings clause” when: (1) at
the time of sentencing, settled law of this circuit or the
Supreme Court established the legality of the sentence; (2)
subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this ...