United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on respondent's motion for
relief from judgment, (DE 67), pursuant to Federal Rule Civil
Procedure 60(b). The motion was fully briefed and the issues
raised are ripe for decision. For the reasons stated below
and in open court on December 18, 2019, the court grants the
motion, vacates its August 26, 2019, order granting habeas
relief, and denies petitioner's motion to vacate, set
aside, or correct his sentence, (DE 42).
December 8, 2008, petitioner pleaded guilty to one count of
conspiracy to commit Hobbs Act robbery, in violation of 18
U.S.C. § 1951 (count one), and two counts of using and
carrying a firearm during and in relation to a crime of
violence, and aiding and abetting same, in violation of 18
U.S.C. §§ 924(c)(1)(A) and 2 (counts two and
three). On March 30, 2009, the court sentenced petitioner to
60 months' imprisonment on counts one and two, to be
served concurrently, and a consecutive term of 300
months' imprisonment on count three, producing an
aggregate custodial sentence of 360 months' imprisonment.
30, 2016, petitioner filed motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255, asserting
that his § 924(c) convictions (counts two and three)
should be vacated in light of Johnson v. United
States. 135 S.Ct. 2551 (2015). At the parties'
request, the court stayed the § 2255 proceedings pending
the United States Court of Appeals for the Fourth
Circuit's resolution of United States v. Simms,
914 F.3d 229 (4th Cir. 2019). On July 24, 2019, the court
lifted the stay and directed the parties to file supplemental
briefing addressing the effect of Simms and United States
v. Davis, 139 S.Ct. 2319 (2019) on petitioner's
motion. On August 23, 2019, the parties filed joint response
to the court's order, in which respondent agreed that
petitioner's convictions on counts two and three should
be vacated. On August 26, 2019, the court entered order
vacating such convictions and petitioner's sentence in
its entirety. The court scheduled petitioner's
resentencing hearing on count one for December 18, 2019.
December 4, 2019, respondent filed the instant motion for
relief from judgment pursuant to Federal Rule Civil Procedure
60(b). As discussed further below, respondent argues it
erroneously consented to habeas relief and that the court
erred by vacating the convictions. Petitioner filed response
in opposition on December 16, 2019.
December 18, 2019, the court held hearing on respondent's
motion and granted the motion in open court with written
order to follow.
Standard of Review
petitioner seeking relief pursuant to 28 U.S.C. § 2255
must show that "the sentence was imposed in violation of
the Constitution or 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." 28
U.S.C. § 2255(a). "Unless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall. . . grant a prompt
hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect thereto."
Id. § 2255(b).
to respondent's motion for relief from judgment, Rule
60(b) allows the court to "relieve a party . . . from a
final judgment, order or proceeding" on specified
grounds. Fed.R.Civ.P. 60(b). "To prevail, a party must
[make a threshold showing demonstrating]: (1) timeliness, (2)
a meritorious defense, (3) a lack of unfair prejudice to the
opposing party, and (4) exceptional circumstances." See
Wells Fargo Bank. N.A. v. AMH Roman Two NC. LLC, 859
F.3d 295, 299 (4th Cir. 2017). If the moving party makes this
threshold showing, the inquiry turns to whether one of the
six specific subsections of Rule 60(b) authorize relief.
Id; Fed.R.Civ.P. 60(b). Here, respondent moves for
relief under subsection (b)(1), which authorizes the court to
grant relief from a final judgment on the basis of
"mistake, inadvertence, surprise, or excusable
neglect." Fed.R.Civ.P. 60(b)(1). The motion must be
"made within a reasonable time - and for [subsection
(b)(1)] no more than a year after the entry of the judgment
or order or the date of the proceeding." Fed. R Civ. P.
Legal Error in the Court's Judgment
court first explains the error in its August 26, 2019, order
and judgment, which granted petitioner's § 2255
motion. Pursuant to 18 U.S.C. § 924(c), a person who
uses or carries a firearm, "during and in relation to
any crime of violence or drug trafficking crime" or who
possess a firearm "in furtherance of any such
crime" is subject to a mandatory minimum five years'
imprisonment for the first conviction, and 25 years'
imprisonment for a second or subsequent conviction. 18 U.S.C.
§ 924(c)(1)(A), (C). The sentence shall run consecutive to
any sentence imposed for the predicate ...