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Carson v. United States

United States District Court, D. South Carolina, Florence Division

September 10, 2019

Kenneth Allen Carson, PETITIONER
v.
United States of America, RESPONDENT

          ORDER

          TERRY L. WOOTEN SENIOR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court for consideration of the petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Kenneth Allen Carson. For the reasons stated below, the petition is denied.

         I. Factual and Procedural History

         Petitioner was charged in a three-defendant, five-count indictment with armed bank robbery (Count 1); using and carrying a firearm during a crime of violence (Count 2); and being a felon in possession of a firearm (Count 3). ECF No. 23. He pled guilty to all three counts, and on February 26, 2004, the Court sentenced him to 276 months on Counts 1 and 3, and 84 months consecutive on Count 2, for an aggregate sentence of 360 months incarceration, followed by concurrent 5-year terms of supervised release on each count. ECF No. 84.

         He was classified as an armed career criminal under the Armed Career Criminal Act (ACCA), which imposes a mandatory minimum fifteen-year sentence on a felon who possesses a firearm and who has three or more prior convictions for committing certain drug crimes or “violent felon[ies].” 18 U.S.C. § 924(e)(1).[1] Though the Presentence Investigation Report (PSR) does not specifically state which offenses it used to classify him as an armed career criminal, it appears that the following South Carolina convictions were counted:

(1) Failure to Stop for a Police Vehicle (PSR ¶ 50);
(2) Assault and Battery of a High and Aggravated Nature (ABHAN) (PSR ¶ 51);
(3) Burglary 2nd (PSR ¶ 52);
(4) Burglary 3rd (PSR ¶ 53); and
(5) ABHAN (PSR ¶ 55).

         After judgment was entered, he filed a direct appeal, but the Fourth Circuit affirmed. United States v. Carson, 164 Fed.Appx. 433 (4th Cir. 2006).

         In January 2007, Petitioner timely filed a pro se petition under 28 U.S.C. § 2255, which the Court dismissed on the merits after briefing. ECF Nos. 99, 122. He filed a direct appeal, but the Fourth Circuit dismissed the appeal for failure to prosecute. United States v. Carson, No. 09-6509 (4th Cir.), ECF No. 8.

         In March 2016, as required by 28 U.S.C. § 2244, Petitioner filed a motion in the Fourth Circuit requesting authorization to file a successive § 2255 petition to seek resentencing in light of Johnson v. United States, 135 S.Ct. 2551 (2015). In re Carson, No. 16-261 (4th Cir.), ECF No. 2. On May 3, 2016, the Fourth Circuit granted his motion. Id., ECF No. 11-1. His § 2255 petition was docketed in this Court that day. ECF No. 145.

         In his § 2255 petition, Petitioner seeks a full resentencing without the ACCA enhancement in light of Johnson. Id. The Government filed a response in opposition, raising numerous reasons why his petition should be denied. ECF No. 204. He then filed a reply. ECF No. 205.

         This matter is now ripe for decision.

         II. 28 U.S.C. § 2255

         Section 2255 provides that a prisoner in custody under sentence of a federal court may file a petition in the court that imposed the sentence to vacate, set aside, or correct the sentence. A petitioner is entitled to relief under § 2255 if he proves by a preponderance of the evidence one of the following: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam).

         In deciding a § 2255 petition, a court need not hold a hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). The Court has thoroughly reviewed the motions, files, and records in this case, liberally construing Petitioner's filings, and finds that no hearing is necessary.

         III. ...


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