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Kerr v. United States

United States District Court, E.D. North Carolina, Western Division

January 3, 2020

SAMUEL KEITH KERR, II, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This 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).

         BACKGROUND

         On 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.

         On June 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.

         On 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.

         On December 18, 2019, the court held hearing on respondent's motion and granted the motion in open court with written order to follow.

         DISCUSSION

         A. Standard of Review

         A 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).

         Turning 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. 60(c)(1).

         B. Analysis

         1. Legal Error in the Court's Judgment

         The 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).[1] The sentence shall run consecutive to any sentence imposed for the predicate ...


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