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
18, 2017, Petitioner Josean Cyristmas Kinard
(“Petitioner”) was charged in a Bill of
Indictment with one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1)
(“Count One”) and one count of possession of a
firearm in interstate commerce with an obliterated serial
number, in violation of 18 U.S.C. § 922(k) (Count Two).
[CR-67, Doc. 1: Bill of Indictment]. On June 7, 2017,
Petitioner was charged in a Bill of Indictment in a second
criminal case with one count of distribution of cocaine, in
violation of 21 U.S.C. § 841(a)(1) (Count One); one
count of possession with intent to distribute cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (Count Two); one
count of possession with intent to distribute heroin, in
violation of 21 U.S.C. § 841(a)(1) (Count Three); and
one count of being a felon in possession of ammunition, in
violation of 18 U.S.C. § 922(g)(1) (Count Four). [CR-81,
Doc. 1: Bill of Indictment].
24, 2017, Petitioner and the Government entered into a Plea
Agreement in both cases. In Case No. 1:17-cr-67, Petitioner
agreed to plead guilty to Count One, and the Government
agreed to dismiss Count Two. [CR-67, Doc. 19 at 1: Plea
Agreement]. In pleading guilty in this case, Petitioner
stipulated that there was a factual basis for his plea of
guilty and that he had read and understood the Factual Basis
that was filed with his Plea Agreement. [CR-67, Id.
at 4]. Among other things, the Factual Basis stated that
Petitioner admitted to the arresting officer that Petitioner
had a 9mm pistol in his vehicle and that Petitioner was a
convicted felon. [CR-67, Doc. 20 at ¶ 2]. The arresting
officer, thereafter, recovered Petitioner's firearm from
the center console of Petitioner's vehicle. [Id.
at ¶ 3]. The Factual Basis also states:
[Petitioner] was a convicted felon at the time of the offense
for a felony where [Petitioner's] sentence was more than
a year and a day. One of the felony convictions includes a
North Carolina conviction from on or about March 26, 2009 for
Trafficking in Cocaine where he received an active sentence
of 35 months minimum and 42 months maximum….
[Petitioner] was a prohibited person at the time of the
[Id. at ¶ 6]. In Case No. 1:17-cr-81,
Petitioner agreed to plead guilty to Counts One and Two, and
the Government agreed to dismiss Counts Three and Four.
[CR-81, Doc. 14 at 1: Plea Agreement].
February 15, 2018, Petitioner was sentenced in both cases.
The Court sentenced Petitioner to 70 months on Count One in
Case No. 1:17-cr-67 and 70 months as to Counts One and Two in
Case No. 1:17-cr-81, to be served concurrently, for a total
term of imprisonment of 70 months. [CR-67, Doc. 35 at 2;
CR-81, Doc. 31 at 2]. Judgments on these convictions were
entered on February 21, 2018. [Id.]. Petitioner did
not file direct appeals from these Judgments.
October 7, 2019, Petitioner filed a pro se motion to
vacate sentence under 28 U.S.C. § 2255. [CV Doc. 1].
Petitioner seeks relief under § 2255 on three grounds:
(1) “[i]n light of the Rehaif v U.S. ruling, the
petitioner's 922(g) offense must be Vacated because it
failed to meet all elements;” (2) “[t]he court
erred in increasing the [base offense level] based upon
priors that no longer qualify due to text & commentary
being inconsistent;” and (3) “[t]he court erred
by imposing a consecutive sentence and also by failing to
properly group the offenses.” [Id. at 3-5].
Court has conducted an initial screening of the petition
under the Rules Governing § 2255 Proceedings, Rule 4(b)
28 U.S.C.A. foll. § 2255 and finds that the motion
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 period for the filing of a
motion to vacate. Such amendment provides:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run ...