Torres v. USA

Filing 13

ORDER that, within 30 days, the United States Attorney shall submit a memorandum to this Court in accordance with this Order. Petitioner's counsel shall then have 20 days in which to file a memorandum in response to Respondent's memorandum re 12 Response in Support. Signed by District Judge Martin Reidinger on 01/17/2013. (thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Civil Case No. 1:12cv291-MR
[Criminal Case No. 1:06cr255-MR-1]
JONATHAN ANTHONY TORRES, )
)
Petitioner,
)
)
v.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
)

ORDER

THIS MATTER is before the Court on consideration of Petitioner’s
Motion to Vacate his conviction under 28 U.S.C. § 2241, [Doc. 1], and the
Government’s Response to the Motion to Vacate, [Doc. 12]. Petitioner is
represented by Charles Brewer.
On March 5, 2007, Petitioner was convicted of possession of
ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
[1:06cr255, Doc. 41]. The Court sentenced Petitioner to 100 months’
imprisonment. Petitioner filed an appeal to the United States Court of
Appeals for the Fourth Circuit and the Court affirmed his criminal judgment
in all respects. United States v. Torres, 281 F. App’x 245 (4th Cir. 2008)
(unpublished). The Supreme Court of the United States denied Petitioner’s

petition for a writ of certiorari on October 18, 2008. Torres v. United States,
555 U.S. 962, 129 S.Ct. 441, 172 L.Ed.2d 7496 (2008).
Next, Petitioner filed a Section 2255 motion asserting various claims
of ineffective assistance of counsel, and stand-alone claims that the
prosecutor violated his Confrontation Clause rights and that the Court
abused its discretion when it upwardly departed from the recommended
sentencing range. The Court found that Petitioner’s arguments were
without merit and therefore denied and dismissed his motion. [1:09cv226MR, Doc. 3]. Petitioner filed an appeal to the Fourth Circuit which was
dismissed. United States v. Torres, 397 F. App’x 913 (4th Cir. 2010)
(unpublished).
In the present motion, Petitioner alleges that he is entitled to relief in
light of the Fourth Circuit’s en banc decision in United States v. Simmons,
649 F.3d 237 (4th Cir. 2011), because the state court felony used to obtain
the Section 922(g)(1) conviction did not carry a sentence of more than one
year. Petitioner contends that the Court should therefore vacate his
conviction and dismiss the indictment. [1:12cv291, Doc. 1]. In its Response,
the Government asserts that it agrees that Petitioner is actually innocent of
the Section 922(g) conviction he now challenges, and he should be entitled
to have his conviction vacated.
2

The Court finds that Respondent shall submit further briefing on the
issue of actual innocence and the effect of United States v. Powell, 691
F.3d 554 (4th Cir. 2012), on Petitioner’s right to relief under Simmons. In
particular, the Government should explain (1) why a motion under Section
2255 is inadequate to address the legality of his conviction and (2) how the
Court is authorized to reach the merits of Petitioner’s Section 2255 motion,
in light of Powell and subsequently filed, unpublished cases by the Fourth
Circuit. See Powell, 691 F.3d at 560-61 (“Because the Supreme Court’s
decision in Carachuri at most altered the procedural requirements that must
be followed in applying recidivist enhancements and did not alter the range
of conduct or the class of persons subject to criminal punishment, we hold
that Carachuri is a procedural rule. It is, therefore, not retroactively
applicable to cases on collateral review.”) (emphasis added); see also
United States v. Wheeler, No. 11-6643, 2012 WL 5417557, at *1 (4th Cir.
filed Nov. 7, 2012) (unpublished) (“We note that Wheeler's claim for
retroactive application of the Supreme Court’s opinion in Carachuri–
Rosendo v. Holder, ––– U.S. ––––, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010),
and our opinion in United States v. Simmons, 649 F.3d 237, 241–45 (4th
Cir. 2011) (en banc), fails in light of our recent opinion in United States v.
Powell, 691 F.3d 554 (4th Cir.2012).”); United States v. Walker, 2012 WL
3

5359506, at *1 (4th Cir. filed Nov. 1, 2012) (unpublished) (holding that
“Carachuri

claims

may

not

be

raised

retroactively

in

collateral

proceedings.”).
Respondent shall also explain how Petitioner and other similarly
situated petitioners can now claim actual innocence, where, at the time of
their convictions, United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005),
was controlling law in the Fourth Circuit. Particularly, Respondent shall
specifically address the issue of whether Petitioner is “factually innocent”
and/or “legally innocent” and state the basis in the record for the
Respondent’s contentions, and whether such forms the basis for the relief
sought by the Petitioner. The Petitioner will thereafter be afforded an
opportunity to respond.
IT IS, THEREFORE, ORDERED that, within thirty (30) days, the
United States Attorney shall submit a memorandum to this Court in
accordance with this Order. Petitioner’s counsel shall then have twenty (20)
days in which to file a memorandum in response to Respondent’s
memorandum.
Signed: January 17, 2013

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