USA v. Eckles et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:13-CV-00054-RLV
(5:05-CR-00009-RLV-DCK-9)

AL ANTONIO BELLAMY, )
)
Petitioner, ,)
)
Vv. }
) ORDER
UNITED STATES OF AMERICA, )
)
Respondent. )
)

THIS MATTER is before the Court on initial review of Petitioner’s Motion to Vacate, Set
Aside or Correct Sentence filed under 28 U.S.C. § 2255. (Doc. No. 1). No response is necessary
from the Government. For the reasons that follow, Petitioner’s Section 2255 Motion will be
DISMISSED.

IL BACKGROUND
On September 9, 2008, Petitioner was convicted on one count of conspiracy to possess
with intent to distribute cocaine and cocaine base, and possession with intent to distribute

marijuana, all in violation of 21 U.S.C. § 846. Petitioner was sentenced to an active term of 405-

months’ imprisonment. (5:05-CR-00009, Doc, No. 1049: Judgment in a Criminal Case),
Petitioner filed an appeal to the United States Court of Appeals for the Fourth Circuit and
raised two claims: (1) whether the district court’s application of the murder cross-reference
violated his rights under the Sixth Amendment; and (2) whether the district court committed an
abuse of discretion in varying one-level upward from the guidelines range. The Fourth Circuit

rejected both claims and affirmed Petitioner’s J udgment in all respects. United States v. Bellamy,

INFORMATION
GPO

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356 F. App’x 653 (4th Cir. Dec. 15, 2009) (unpublished). Petitioner did not file a petition for a
writ of certiorari with the Supreme Court of the United States.

On April 1, 2013, the Clerk of Court filed the present Section 2255 motion. (5:13-CV-
00054).

H. STANDARD OF REVIEW

Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing
courts are directed to promptly examine motions to vacate, along with “any attached exhibits and
the record of prior proceedings” in order to determine whether a petitioner is entitled to any
relief. After examining the motion the Court finds that it must be dismissed.

I. DISCUSSION

Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings provides that a motion
filed under Section 2255 must “be signed under penalty of petjury by the movant or by a person
authorized to sign it for the movant.” According to the record before this Court, Petitioner did .
not sign his Section 2255 motion because he is in a Special Housing Unit within the Federal
Bureau of Prisons. Instead, it appears a fellow inmate signed the Section 2255 motion and

submitted it to the Court on his behalf “to preserve its timeliness.” (5:13-CV-00054, Doc. No. 1

name is largely illegible, is an attorney or otherwise authorized by law to sign on Petitioner’s

behalf. This alone supports summary dismissal of Petitioner’s Section 2255 motion. See

McFarland v. Scott, 512 U.S, 849, 856 (1994) (“Federal courts are authorized to dismiss

summarily any habeas petition that appears legally insufficient on its face.”) (citing 28 U.S.C. §

2254 Rule 4).

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However, in an effort to preserve scarce judicial resources the Court will examine the
merits of the motion rather than provide Petitioner with an opportunity to properly sign and
submit his Section 2255 motion. Moreover, it is unclear from the record whether Petitioner
participated in the shaping of the arguments in his motion prior to his transport to the Special
| Housing Unit. In any event, the Court finds that requiring proper verification would be futile,
first, because each of the claims in Petitioner’s motion fali well outside the statute of limitations
and second, because he presents no claim which could support the extraordinary remedy of
equitable tolling of the statute of limitations.

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under the AEDPA, there is a one-year statute of limitations for filing a motion for

collateral relief. Section 2255(f) provides:

(fH A I-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of— .

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United States
is removed, if the movant was prevented from making a motion by such
governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme.

Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or ‘

(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(H)(1)-(4).
Petitioner’s Judgment became final on or about March 15, 2010, when he did not petition the

Supreme Court for certiorari following dismissal of his direct appeal. See Clay v. United States,

Case 5:05-cr-O0009-MEO-DCK Document1570_ Filed 04/04/13. Page 3 of 7

537 U.S. 522, 525 (2003).

Petitioner raises four claims for relief: (1) prosecutorial misconduct; (2) ineffective
assistance of counsel in failing to adequately challenge the murder cross-reference; (3)
ineffective assistance of counsel relating to his decision to enter a guilty plea without benefit of a
plea agreement; and (4) that the Court should reach these claims on the ground of equitable
tolling. |

A. Ground One

Petitioner contends the prosecutor withheld over 1700 pages of discovery which he
argues would have assisted him in his defense. Under the one-year statute of limitations under
Section 2255(f)(1), Petitioner must have filed his Section 2255 motion on or about March 15,
2011, or within one year after his Judgment became final. Petitioner’s motion, filed no earlier
than March 20, 2013, the date it was presumably delivered to prison authorities for mailing, is
therefore over two-years out of time.

Assuming Petitioner contends his motion is timely under either § 2255((2) or D4),

Petitioner offers no facts concerning when he learned of the prosecutor’s alieged actions in

withholding discovery, and this Court is not prepared to presume this discovery occurred within

proceeding. This claim for relief is dismissed as untimely.

B. Ground ‘Two

Petitioner contends that his counsel failed to present an adequate challenge to the
application of the murder cross-reference, while at the same time admitting that his counsel did,

in fact, raise a challenge prior to sentencing which the Court rejected. In addition, the Fourth

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Circuit considered and rejected this argument on appeal. This alone should preclude relief. See
Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (finding that in a Section
2255 proceeding, a petitioner “will not be allowed to recast, under the guise of a collateral attack,
questions fully considered” and decided on direct appeal.); United States y. Bell, 5 F.3d 64, 66
(4th Cir, 1993) (holding that the law of the case doctrine “forecloses litigation of issues expressly
or impliedly decided by the appeilate court.”).

To the extent Petitioner offers this argument as a pure ineffective assistance of counsel
claim, it is untimely under any provision of Section 2255(f) because he has offered no reasonable
explanation why he could not have raised this claim before March 15, 2011, and it will therefore
be dismissed.

C. Ground Three

Here, Petitioner contends that his trial counsel was ineffective during his negotiations
with the Government and that the action or omission or his counsel ultimately deprived
Petitioner of a meaningful, written plea agreement, This argument is based on recent Supreme
Court cases discussing the nature of an attorney’s responsibility to his client during plea
negotiations. On March 21, 2012, the Supreme Court handed down decisions in Missouri v.
fairly articulate this argument, Petitioner must contend that his Section 2255 motion, which was
apparently delivered to prison authorities on March 20, 2012, is timely under Section 2255()(3).
This argument must fail because even assuming the motion was timely under Section 2255(f)(3),
there is no indication that the Supreme Court has made the decisions in either Frye or Lafler

retroactive to cases on collateral review. In fact the many courts which considered the issue of

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retroactivity have held that the decisions in Frye and Lafler are not retroactive to cases on

collateral review because the Supreme Court, through these cases, did not announce a new rule

of constitutional law. See, e.g., In re Perez, 682 F.3d 930, 932-34 (11th Cir. 2012); In re King,

697 F.3d 1189 (5th Cir. 2012) (per curiam opinion agreeing with the holding in the Eleventh
Circuit’s opinion in the case of In re Perez). Petitioner’s claim for relief will be dismissed as
untimely.

D. Ground Four

Finally, for the reasons stated herein, Petitioner cannot make a showing that he is entitled
to equitable tolling, He has completely failed to allege facts which could alert this Court to any
reason why his claims could not have been raised at the trial level, on appeal, or within the one-
| year time frame provided for under Section 2255(f)(1)-(4).

IV. CONCLUSION

IT 18, THEREFORE, ORDERED that for the reasons stated herein Petitioner’s Section
2255 Motion is DISMISSED as untimely (Dec. No. 1).

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Cases, this Court declines to issue a certificate of appealability as Petitioner has not
§ 2253(c)(2); Miller-
EL v. Cockrell, 537 U.S. 322, 336-38 (2003) (stating that in order to satisfy § 2253(c), a
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000)

(holding that when relief is denied on procedural grounds, a petitioner must establish both that

the correctness of the dispositive procedural ruling is debatable and that the petition states a

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debatably valid claim of the denial of a constitutional right).

Signed: April 4, 2013

ele. Loa

Ea
4 “

Richard L. Voorhees
United States District Judge

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