United States District Court, W.D. North Carolina, Asheville Division
Reidinger, United States District Judge.
MATTER is before the Court on the Petitioner's
Pro Se Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody. [CV Doc. 5.
Kenneth Lee Gardner (“Petitioner”) pleaded guilty
to one count of conspiracy to possess with the intent to
distribute less than 500 grams of a mixture or substance
containing cocaine, all in violation of 21 U.S.C.
§§ 841(a)(1) and 846. [CR Doc. 9: Amended Bill of
Information; Id. at Doc. 13: Acceptance and Entry of
Guilty Plea]. On May 20, 2010, the Court sentenced Petitioner
to a term of 120 months' imprisonment and a term of 3
years of supervised release. [CR Doc. 56 at 2-3: Judgment].
Judgment was entered on Petitioner's conviction on June
18, 2010. [CR Doc. 56: Judgment]. Petitioner appealed his
conviction and sentence to the Fourth Circuit Court of
Appeals, which affirmed this Court's judgment. [CR Doc.
20, 2016, Petitioner filed a Section 2255 Motion to Vacate,
Set Aside, or Correct Sentence, which was denied and
dismissed on the merits. [CR Docs. 83, 85]. The Fourth
Circuit Court of Appeals dismissed Petitioner's
subsequent appeal and denied a certificate of appealability.
[CR Docs. 86, 88]. On or about January 16, 2018, Petitioner
completed his custodial term of incarceration, and his
three-year term of supervised release began. [See CR
Doc. 90 at 1: Petition for Warrant for Offender Under
Supervision]. On October 11, 2018, the U.S. Probation Office
filed a supervised release violation alleging that Petitioner
committed several new law violations in relation to a motor
vehicle accident that was caused by Petitioner. These
violations included driving while impaired and failure to
stop at a red light, both Grade C violations; and misdemeanor
possession of a Schedule II controlled substance and leaving
the scene of an accident, both Grade B violations. [CR Doc.
90 at 2]. A United States Magistrate Judge thereafter issued
a warrant for Petitioner's arrest. [Id. at 6].
was arrested on December 20, 2018. Petitioner's initial
appearance on the revocation of supervised release was held
on December 21, 2018. On March 31, 2019, the Court held a
hearing on the revocation of Petitioner's supervised
release. Present at the hearing were Petitioner, his
attorney, and counsel for the Government. At the hearing,
Petitioner admitted to the new law violations. [Doc. 107 at
3: Revocation Hearing Tr.]. The Court determined, and counsel
for both parties agreed, that based on Petitioner's
criminal history category of VI and the statutory maximum for
a term of incarceration after a class C felony, the guideline
range was limited to between 21 and 24 months. [Id.
at 3-4]. After hearing arguments of counsel and
Petitioner's statement to the Court, the Court revoked
Petitioner's supervised release and sentenced Petitioner
to a term of 14 months' imprisonment, below the guideline
range. [Id. at 4-13].
September 20, 2019, Petitioner filed a § 2255 Motion to
Vacate, Set Aside, or Correct Sentence, challenging his
revocation proceedings and the judgment entered thereon. [CV
Doc. 1]. The Court denied and dismissed Petitioner's
motion on the merits. [CV Doc. 3].
filed the instant § 2255 Motion to Vacate on December
16, 2019, again challenging his revocation proceedings and
the judgment thereon. [CV Doc. 5]. In his motion, Plaintiff
also moves the Court to release “the camera footage of
the trial [on] March 21, 2019” and to appoint counsel for
Petitioner. [CV Doc. 5 at 2].
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).
initial motion pursuant to § 2255 has been adjudicated
on the merits, a second or successive motion under the
statute must be certified by the court of appeals before it
may be filed with this Court. 28 U.S.C. § 2255(h). To
certify a second or successive § 2255 motion for filing
with this Court, the court of appeals must find that the
motion contains either: “(1) newly discovered evidence
that, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense; or (2) a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” Id. Petitioner's first
motion challenging his revocation proceedings and the
judgment entered thereon was adjudicated on the merits. [CV
Doc. 3]. Petitioner has not sought and obtained certification
from the Fourth Circuit Court of Appeals prior to filing this
motion. As such, this Court may not consider the merits of
Petitioner's claim here.
Court will deny Petitioner's Section 2255 Motion to
Vacate, Set ...