Robinson v. USA

Filing 2

ORDER that no later than 40 days from the Fourth Circuit's decision in United States v. Powell, No. 11-6152, the U. S. Attorney shall file an Answer re 1 Motion to Vacate/Set Aside/Correct Sentence (2255). The govt is also directed to address in its Answer the issue of whether the Petition in this matter is timely filed. Signed by District Judge Martin Reidinger on 10/26/2011. (Pro se litigant served by US Mail.)(pdf)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv282
(CRIMINAL CASE NO. 1:07cr11)

MICHAEL N. ROBINSON,

)
)
Petitioner,
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)
vs.
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UNITED STATES OF AMERICA,
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Respondent.
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_______________________________ )

ORDER

THIS MATTER comes before the Court on the Petitioner’s Motion under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By A Person in
Federal Custody. [Doc. 1].
Petitioner challenges his conviction and sentence in light of the Supreme
Court’s decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) and
argues that his Motion is timely pursuant to 28 U.S.C. § 2255(f)(3). Upon
consideration of the motion and the record of prior proceedings, the Court
determines that the United States Attorney should file a response to the
Petitioner’s allegations. Rule 4(b), Rules Governing Section 2255 Proceedings
for the United States District Courts. The Court is aware that the Fourth Circuit
issued a decision in the Simmons case on August 17, 2011. United States v.

Simmons, 649 F.3d 237 (4 th Cir. 2011). In United States v. Simmons, the
majority of the en banc panel of the Fourth Circuit decided that United States
v. Harp, 406 F.3d 242 (4 th Cir. 2005) had been overruled by the Supreme
Court’s opinion in Carachuri-Rosendo v. Holder, 130 S. Ct 2577 (2010).1 The
Simmons Court concluded that the evaluation of whether a particular offense
was a felony must focus on the maximum sentence for which a particular
defendant was eligible, in light of his criminal history, rather than the maximum
sentence that could be imposed on a defendant with the worst possible
criminal record.
The Simmons case, however, does not address the issue of whether
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), applies to cases on
collateral review. Instead, the Fourth Circuit is expected to decide this issue
in the context United States v. Powell, No. 11-6152, which had been held in

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In Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), the Supreme Court
considered whether the defendant, who had been convicted in state court of two
misdemeanor drug offenses, and who had not been charged as a recidivist with respect
to the second offense, qualified as having been convicted of an “aggravated felony”
under 8 U.S.C. § 1101(a)(43) of the Immigration and Naturalization Act. The Court
concluded that “[t]he mere possibility that defendant’s conduct, coupled with facts
outside of the record of conviction, could have authorized a felony conviction under
federal law is insufficient to satisfy the statutory command that a noncitizen be
‘convicted of a[n] aggravated felony’ before he loses the opportunity to seek
cancellation of removal.” Id. at 2589. The Court, therefore, concluded that the state
convictions to which no recidivist penalty attached did not meet the definition of
“aggravated felony” under the immigration statute.
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abeyance pending a decision in Simmons. The Fourth Circuit has directed the
Government to file a brief in the Powell case on or before November 14, 2011.
Upon review of the Simmons decision and in anticipation of a decision
in Powell, the Court directs that the United States file an Answer in this case
within forty (40) days of the Fourth Circuit’s decision in Powell.
IT IS, THEREFORE, ORDERED that no later than forty (40) days from
the Fourth Circuit’s decision in United States v. Powell, No. 11-6152, the
United States Attorney shall file an Answer to Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence, detailing and responding to Petitioner’s
allegation. The Government is also directed to address in its Answer the issue
of whether the Petition in this matter is timely filed.
IT IS SO ORDERED.
Signed: October 26, 2011

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