USA v. Eckles et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5: 12-cv-114-RLV
(5:06-cr-9-RLV-DCK-12)

ANTHONY TODD HALLMAN,

Petitioner,
Vs. ORDER

UNITED STATES OF AMERICA,

Respondent.

we ww we es oe oe oe se we

THIS MATTER is before the Court on Petitioner’s Motion to Vacate, Set Aside or
Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and on a Motion to Withdraw as
Attomey by Leah Kane of the Federal Defenders Office, (Doc. No. 3). Petitioner moves this
Court to vacate his conviction on the basis of the Fourth Circuit’s en banc decision in United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011). Because Petitioner’s motion is untimely, the
Court will dismiss the motion to vacate.

I. BACKGROUND

On October 12, 2005, Petitioner pled guilty pursuant to a wnitten plea agreement to
conspiracy to possess with intent to distribute a quantity of cocaine and cocaine base, and
possession with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 846.
(Cnm. No. 5:05-cr-9, Doc. No. 347: Plea Agreement). On July 10, 2006, Petitioner was
sentenced to 292 months’ imprisonment, which was subsequently reduced to 240 months’
imprisonment. (Ic., Doc. No. 591: Judgment; Doc. No. 1310: Order Granting Motion to Reduce
Sentence re Crack Cocaine Offense). Petitioner received a sentencing enhancement under 21

U.S.C. § 851 based on prior state court convictions.

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INFORMATION

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Petitioner did not appeal. On August 7, 2012, Petitioner placed the instant motion to
vacate in the prison mail system, and the motion was stamp-filed in this Court on August 10,
2012. In the motion, Petitioner argues that none of his prior convictions qualified as felony
offenses for purposes of the Section 851 sentencing enhancement. Pursuant to Standing Order
by this Court, the Federal Defenders Office was assigned counsel for the purpose of determining
whether Petitioner is entitled to Simmons relief. On February 22, 2013, after conducting an
initial Simmons review, the Federal Defenders Office filed a motion to withdraw as counsel.
II. STANDARD OF REVIEW
Rule 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
argument presented by the Petitioner can be resolved without a response from the Government
and 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).
III. DISCUSSION
Paragraph 6 of 28 U.S.C. § 2255, which applies to initial motions to vacate, provides
generally for a one-year statute of limitations from the date on which a petitioner’s judgment
becomes final. 28 U.S.C. § 2255(f)(1). Here, Petitioner’s judgment became final when his time
for filing an appeal expired, or ten days after his guilty plea on October 12, 2005. Since
Petitioner did not file his Section 2255 motion to vacate until August 7, 2012, his motion is
therefore subject to dismissal as untimely under Section 2255(f)(1), and none of the other time
periods set forth under Section 2255(f) applies. Finally, even if the Court were to apply
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equitable tolling to Petitioner, he would still not be entitled to Simmons relief because he
received a sentence that was within the statutory maximum sentence allowed. See United States
v. Powell, 691 F.3d 554, 562 n.1 (4th Cir. 2012).
IV. CONCLUSION
For the foregoing reasons, the Court dismisses Petitioner’s Section 2255 petition as
untimely.
IT IS, THEREFORE, ORDERED that:
1. Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255, (Doc. No. 1), is DENIED and DISMISSED as untimely.
2. The Motion to Withdraw as Counsel, (Doc. No. 3), is GRANTED.
3. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 and Section 2255 Cases, this Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 338 (2003) (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. 473,
484 (2000) (when relief is denied on procedural grounds, a petitioner must
establish both that the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a constitutional right).
Signed: February 27, 2013
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Case 5:05-cr-00009-MEO-DCK Document 1566
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