United States District Court, W.D. North Carolina, Charlotte Division
Cogbum Jr.United States District Judge.
MATTER is before the Court on Petitioner's Motion to
Vacate pursuant to 28 U.S.C. § 2255, (Doc. No. 1), and
on the Government's Motion to Dismiss Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence, (Doc. No.
pled guilty in the underlying criminal case to conspiracy to
traffic cocaine and cocaine base near a protected location,
and he was sentenced to 360 months' imprisonment and ten
years of supervised release. (3:95-cr-178, Doc. No. 304). The
sentence was later reduced to 235 months' imprisonment
pursuant to an amendment to the crack cocaine guidelines.
(Id., Doc. No. 565). Petitioner began serving
supervised release in May 2014 and, in June 2015, the U.S.
Probation Office filed a Petition for Warrant alleging that
he violated the conditions of his supervised release.
(Id., Doc. No. 631); see also (Id., Doc.
No. 637) (Addendum). The Court found Petitioner guilty of
drug/alcohol use and a new law violation, revoked supervised
release, and sentenced him to 11 months' imprisonment
followed by eight years of supervised release. (Id.,
Doc. No. 660).
appeal from the revocation, Petitioner argued that the
probation officer presented false testimony at the revocation
hearing and that the sentence was unreasonable. The Fourth
Circuit Court of Appeals affirmed, finding that the Court did
not abuse its discretion in revoking Petitioner's
supervised release upon finding that he violated the terms of
his supervision, and that the Court's explanation of the
selected sentence was sufficient. United States v.
Alexander, 661 Fed.Appx. 786 (4th Cir. 2016).
The United States denied certiorari on March 27, 2017.
Alexander v. United States, 137 S.Ct. 1387
(4th Cir. 2017). Petitioner filed the instant
§ 2255 Motion to Vacate on March 5, 2018, arguing that
he was denied due process in his revocation proceedings.
(Doc. No. 1).
Government filed a Motion to Dismiss, (Doc. No. 7), arguing
that the § 2255 Motion to Vacate is barred because the
Fourth Circuit previously rejected this claim on direct
Court issued an Order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975),
instructing Petitioner of his right to respond to the Motion
to Dismiss. (Doc. No. 8). Petitioner filed a Response arguing
that the misconduct of Mike M. Bonelli is so serious that he
was denied due process and perpetrated fraud on the court.
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).
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the arguments presented by Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
well settled that a criminal defendant cannot
“circumvent a proper ruling ... on direct appeal by
re-raising the same challenge in a § 2255 motion.”
United States v. Dyess, 730 F.3d 354, 360
(4th Cir. 2013) (quoting United States v.
Linder, 552 F.3d 391, 396 (4th Cir. 2009));
see also United States v. Roane, 378 F.3d 382, 396
n. 7 (4th Cir. 2004) (noting that, absent
“any change in the law, ” defendants
“cannot relitigate” previously decided issues in
a § 2255 motion); Boeckenhaupt v. United
States, 537 F.2d 1182, 1183 (4th Cir.1976)
(holding criminal defendant cannot “recast, under the
guise of collateral attack, questions fully considered by
this court [on direct appeal]”).
present claim is barred because he argued on direct appeal
that his supervised release revocation was based on false
testimony, and the Fourth Circuit denied his claim on the
merits. Petitioner fails to cite any change in the law that
would warrant relief from his supervised release revocation.
The instant § 2255 Motion ...