Suttles v. USA

Filing 9

ORDER denying 8 Motion to Stay. Signed by District Judge Martin Reidinger on 3/19/13. (ejb) (Main Document 9 replaced on 3/19/2013 with correct PDF) (ejb). NEF Regenerated.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Civil Case No. 1:12cv00177-MR
[Criminal Case No. 1:07cr00060-MR-1]
ROBBIE SUTTLES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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ORDER

THIS MATTER comes before the Court on Petitioner’s Motion to Stay
the Court’s resolution of Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence, filed pursuant to 28 U.S.C. § 2255.
In his motion, Petitioner seeks to stay these proceedings until the
Supreme Court of the United States issues a decision in McQuiggin v.
Perkins, 670 F.3d 665 (6th Cir. 2012). 133 S.Ct. 527, 184 L.Ed.2d 338,
2012 U.S. LEXIS 8503 (U.S. Oct. 29, 2012) (No. 12-126). In McQuiggin
the Supreme Court has granted certiorari on the question of whether the
time periods under 38 U.S.C. §2255(f) are extended where a prisoner
claims asserts actual innocence.

Petitioner argues in his Section 2255

motion that he is “actually innocent of being a career offender.” Petitioner’s
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sentence was enhanced based on a finding that he is a career offender.
Petitioner now seeks to belatedly challenge that determination based on
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). [Civil
Case No. 1:12-cv-00177, Doc. 1 at 6].
In an Order filed contemporaneously with this Order, the Court found
that Petitioner’s challenge to his status as a career offender must fail in
light of the Fourth Circuit’s holding in United States v. Powell, 691 F.3d 554
(4th Cir. 2012), and subsequent, unpublished opinions, which hold that
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), and the
Supreme Court’s opinion in Carachuri-Rosendo v. Holder,

, U.S.

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130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), are not retroactive to cases on
collateral review.1 Based thereon the Court denied and dismissed his
Section 2255 motion and declined to issue a certificate of appealability.
Therefore, even if Petitioner’s motion were timely, it would be of no
consequence to his claim.
In addition, Petitoiner’s argument under McQuiggin is without merit.
In Petitioner’s presentence report (“PSR”), the U.S. Probation Officer found
that he had been convicted on three felony controlled substance offenses
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Petitioner was sentenced in this Court on April 25, 2008, and he did not file a direct
appeal from this Judgment. Petitioner’s Judgment was therefore final in May 2008. See
Fed. R. App. P. 4(b) (applying pre-2009 amendment that provides a direct appeal must
be filed within 10-days from entry of judgment).
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under North Carolina law. Based on these convictions, the probation officer
concluded that Petitioner qualified as a career offender under USSG §
4B1.1. [Criminal Case No. 1:07cr00060, Doc. 25: PSR ¶ 25]. Petitioner
does not contend that he is factually innocent of the crimes which formed
the basis for his status as a career offender. Rather, he asserts that under
present case law, the predicate crimes may not expose him to a sentence
in excess of one year and would therefore not serve as proper, predicate
convictions to support a conclusion that he is a career offender. This is not
a claim of actual innocence. See United States v. Pettiford, 612 F.3d 270,
284 (4th Cir. 2010) (holding that “actual innocence applies in the context of
habitual offender provisions only where the challenge to eligibility stems
from factual innocence of the predicate crimes, and not from the legal
classification of the predicate crimes.”). For the foregoing reasons,
Petitioner’s Motion to Stay Proceedings will be denied in the Court’s
discretion.
IT IS, THEREFORE, ORDERED that Petitioner’s Motion to Stay
Proceedings is DENIED. [Doc. 8].
Signed: March 19, 2013

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