Ward v. USA

Filing 3

ORDER dismissing Motion to Vacate, Set Aside or Correct Sentence (2255); denying motion for appointment of counsel. Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 8/12/13. (Pro se litigant served by US Mail.)(bsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-00214-MR
[Criminal Case No. 1:02-cr-00063-MR-1]

DAVID CLARENCE WARD,

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

ORDER

THIS MATTER is before the Court on Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1] and on
Petitioner’s Motion to Appoint Counsel [Doc. 2].
I.

PROCEDURAL HISTORY
On February 3, 2003, after a jury trial, Petitioner was convicted of

bank robbery, in violation of 18 U.S.C. § 2113(a) (Count One); armed bank
robbery, in violation of 18 U.S.C. § 2113(d) (Count Two); possession of a
firearm during and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii) (Count Three); and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g) (Count Four). [Criminal
Case 1:02-cr-63-MR-1, Doc. 30: Judgment].

On January 28, 2003, this Court sentenced Petitioner to 130 months
in prison on each of Counts One and Two; 120 months in prison on Count
Four, to be served concurrently to the terms for Counts One and Two; and
300 months in prison on Count Three, to be served consecutively to the
terms for Counts One, Two, and Four, for a total of 430 months. [Id., Doc.
30: Judgment]. Petitioner appealed, and on February 5, 2004, the Fourth
Circuit affirmed the conviction and sentence in an unpublished opinion.
United States v. Ward, 89 F. App’x 382 (4th Cir. 2004). The United States
Supreme Court denied certiorari on June 14, 2004. Ward v. United States,
542 U.S. 910, 124 S. Ct. 2855, 159 L.E.2d 278 (2004). Petitioner filed the
instant motion to vacate on July 25, 2013, contending that his sentence is
unconstitutional in light of the U.S. Supreme Court’s recent decision in
Alleyne v. United States, 133 S. Ct. 2151 (2013).
II.

STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides

that courts are to promptly examine motions to vacate, along with “any
attached exhibits and the record of prior proceedings” in order to determine
whether the petitioner is entitled to any relief on the claims set forth therein.
After examining the record in this matter, the Court finds that the motion to
vacate can be resolved without an evidentiary hearing based on the record
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and governing case law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
III.

DISCUSSION
On April 24, 1996, Congress enacted the Antiterrorism and Effective

Death Penalty Act (the “AEDPA”). Under the AEDPA, there is a one-year
statute of limitations for filing a motion for collateral relief. Section 2255(f)
provides:
(f) A 1-year period of limitation shall apply to a
motion under this section. The limitation period shall
run from the latest of —
(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a
motion created by governmental action in violation
of the Constitution or laws of the United States is
removed, if the movant was prevented from making
a motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2255(f).

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Here, Petitioner’s judgment became final on June 14, 2004, when the
Supreme Court denied certiorari. Clay v. United States, 537 U.S. 522, 530,
123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). Because Petitioner did not file his
motion to vacate until on or around July 25, 2013, his motion is untimely
under Section 2255(f)(1). Petitioner argues, however, that the petition is
timely under § 2255(f)(3), which provides that a petition may be filed within
one year after “the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral
review.” 28 U.S.C. § 2255(f)(3). Petitioner contends that the petition is
timely under § 2255(f)(3) because it was filed within one year of Alleyne.
The U.S. Supreme Court has not, however, found that Alleyne is retroactive
to cases on collateral review. In Alleyne, the Supreme Court held that any
fact that increases the mandatory minimum sentence for a crime is an
“element” of the criminal offense that must be proven beyond a reasonable
doubt by submission to the jury. The Court resolved Alleyne on direct,
rather than collateral review, and it did not declare that its new rule applied
retroactively on collateral attack.

Indeed, Alleyne is an extension of

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000).

The Supreme Court has decided that other rules based on
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Apprendi do not apply retroactively on collateral review. See Schriro v.
Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004).
For these reasons the § 2255 petition is time-barred.1 Furthermore,
Petitioner does not assert, nor does the Court find, any circumstances that
would warrant equitable tolling. Therefore, the petition will be dismissed.2
The Court finds that Petitioner has not made a substantial showing of
a denial of a constitutional right. See generally 28 U.S.C. § 2253(c)(2); see
also Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003) (in order to satisfy § 2253(c), a “petitioner must
demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong”) (citing Slack
v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542
(2000)).

Petitioner has failed to demonstrate both that this Court’s

dispositive procedural rulings are debatable, and that his Motion to Vacate
states a debatable claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
1

The petition is also subject to dismissal because Petitioner did not sign the petition
under penalty of perjury.
2

The Court is aware of the Fourth Circuit's directive in Hill v. Braxton, 277 F.3d 701, 706
(4th Cir. 2002), that a court must warn a petitioner that his case is subject to dismissal
before dismissing a petition as untimely filed when justice requires it. Here, however,
such warning is not necessary because, in his § 2255 petition, Petitioner addressed the
statute of limitations issue by contending that the petition is timely under § 2255(f)(3).
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As a result, the Court declines to issue a certificate of appealability. See
Rule 11(a), Rules Governing Section 2255 Proceedings for the United
States District Courts, 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s Section 2255
Motion to Vacate, Set Aside, or Correct Sentence [Doc. 1] is DENIED and
DISMISSED with prejudice.
IT IS FURTHER ORDERED that Petitioner’s Motion to Appoint
Counsel [Doc. 2] is DENIED.
IT IS FURTHER ORDERED that the Court declines to grant a
certificate of appealability.
IT IS SO ORDERED.

Signed: August 12, 2013

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