United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Petitioner’s
Motion to Vacate Sentence under 28 U.S.C. § 2255 [CV
Doc. 1],  Petitioner’s Supplemental Motion to
Vacate Sentence under 28 U.S.C. § 2255 [CV Doc. 3], and
the Government’s Motion to Dismiss Petitioner’s
Motion to Vacate [CV Doc. 10]. The Petitioner is represented
by Joshua Carpenter of the Federal Defenders of Western North
February 8, 2012, Petitioner Clinton Hugo Wilson, Jr.,
(“Petitioner”) was charged, along with his
co-defendants Donzell Ali McKinney and Kylie Brooke Rumfelt,
in a Bill of Indictment with one count of Hobbs Act robbery,
in violation of 18 U.S.C. § 1951(a) (Count One); one
count of conspiracy to commit Hobbs Act robbery, in violation
of 18 U.S.C. § 1951(a) (Count Two); and one count of
possessing and discharging a firearm in furtherance of a
“crime of violence, ” that is Hobbs Act robbery,
in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count
Three). [CR Doc. 1: Indictment]. On August 15, 2012,
Petitioner and the Government entered into an Amended Plea
Agreement, pursuant to which Petitioner agreed to plead
guilty to Counts One and Three and the Government agreed to
dismiss Count Two. [CR Doc. 40 at 1: Amended Plea Agreement].
March 20, 2013, the Court sentenced Petitioner to a term of
imprisonment of 46 months on Count One and 120 months on
Count Two, to be served consecutively to the term imposed on
Count One, for a total term of 166 months’
imprisonment. [CR Doc. 66 at 2: Judgment]. Judgment on this
conviction was entered on April 3, 2013. [Id.].
Petitioner did not file a direct appeal from this Judgment.
26, 2016, Petitioner filed a pro se motion to vacate
sentence under 28 U.S.C. § 2255. [CV Doc. 1]. On June
21, 2016, counsel with the Federal Defender’s office
filed, on Petitioner’s behalf, a Supplemental Motion to
Vacate Sentence, arguing that his conviction under 18 U.S.C.
§ 924(c) is invalid under Johnson v. United
States, 135 S.Ct. 2551 (2015). [CV Doc. 3]. The Court
conducted an initial screening of Petitioner’s Motion
and the Supplemental Motion. The Court found that these
motions appeared to be untimely under § 2255(f)(1), but
were filed within one year of Johnson, §
2255(f)(3), and that Petitioner stated a colorable claim for
relief cognizable under § 2255(a). [CV Doc. 4 at 2]. The
Court, therefore, ordered the Government to respond to these
upon the request of the Government, this matter was stayed
pending the Fourth Circuit’s decision in United
States v. Ali, No. 15-4433, or United States v.
Simms, No. 15-4640. [CV Doc. 5]. The Fourth Circuit then
ordered that Ali would be held in abeyance pending
the Supreme Court’s decision in United States v.
Davis, No. 18-431. On the Government’s request,
this matter was in turn stayed pending Davis. The
Supreme Court decided Davis on June 24, 2019. The
next day this Court lifted the stay and ordered the
Government to respond to the Petitioner’s motion by
August 23, 2019. The Government timely filed a motion to
dismiss Petitioner’s § 2255 motion to vacate. [CV
Doc. 10]. The Petitioner, despite being represented by
counsel, did not respond.
matter is now ripe for disposition.
STANDARD OF REVIEW
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 motion to vacate 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).
Petitioner’s Pro Se Motion to Vacate.
pro se motion to vacate, Petitioner seeks relief
under § 2255 on three grounds: (1) ineffective
assistance of counsel because Petitioner told his lawyer
“that the Government prosecutor should be held to some
sort of reprimand for failing to let him argue that evidence
was withheld on the Government[’]s part concerning five
different statements of a female co-defendant and he failed
to appeal;” (2) prosecutorial misconduct for
withholding five different conflicting statements made by a
female co- defendant until after Petitioner pleaded guilty
“under violation of the Brady [sic]
rule;” and (3) a due process violation for
“putting a Defendant in prison for a loss of liberty
based on false evidence and conduct that is not
criminal.” [Doc. 1 at 4].
1996, Congress enacted the Antiterrorism and Effective Death
Penalty Act (the “AEDPA”). Among other things,
the AEDPA amended 28 U.S.C. § 2255 by imposing a
one-year statute of limitations ...