The opinion of the court was delivered by: Joseph F. Anderson, Jr. United States District Judge
The pro se defendant, Keith Demond Ingram, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 The government has responded and moved to dismiss*fn2 the petition as untimely, successive, and lacking substantive merit. For the reasons which follow, the court has determined that an evidentiary hearing is not necessary and that the § 2255 motion should be dismissed.*fn3
A jury found the defendant guilty of robbery (Count 1); using a firearm in relation to a crime of violence (Count 2); and being a felon in possession of a firearm (Count 4). The court sentenced the defendant to a term of 342 months imprisonment. The Fourth Circuit
Court of Appeals affirmed the defendant's conviction in its mandate dated September 27, 2002.
The defendant's first § 2255 motion was filed on September 8, 2003, which this court denied.
Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. A petitioner must prove that one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a).
The present § 2255 motion was filed on August 6, 2012 and is the defendant's second § 2255 motion. The defendant argues that he is entitled to relief based upon the Fourth Circuit's holding in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). It appears that the defendant assumes that his § 2255 motion is timely because it was filed within one year of the Simmons case which was decided on August 17, 2011.
The Simmons decision, which interpreted and applied Carachuri-Rosendo v. Holder, 130 S.Ct. 2377 (2010), held that when assessing whether prior North Carolina convictions constitute predicate offenses, courts must look only to the statutory minimum and maximum sentence as found by the North Carolina state court for that particular defendant. However, the Fourth Circuit has recently held that the rule announced in Carachuri-Rosendo and applied in Simmons is not retroactive to cases on collateral review. See United States v. Powell, 691 F.3d 554 (4th Cir. 2012). In Powell, the Fourth Circuit ruled that because the ...