Parker v. USA

Filing 5

ORDER denying and dismissing Motion to Vacate, Set Aside or Correct Sentence (2255); denying 4 MOTION to consider the Government's Failure to Oppose the Petition as an Admission of Error and to Grant the Relief Requested; Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 08/16/13. (Pro se litigant served by US Mail.)(emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:13-cv-00010-MR
[CRIMINAL CASE NO. 2:06-cr-00002-MR-1]
LEONARD O’BRIEN PARKER,

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

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on Petitioner’s Motion under 28,
United States Code, Section 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody [Doc. 1], as amended [Doc. 2],
and on Petitioner’s Motion to Consider the Government’s Failure to Oppose
the Petitioner as an Admission of Error and to Grant the Relief Requested
[Doc. 4]. For the reasons that follow, the Court finds that the petition must
be dismissed as untimely.
PROCEDURAL HISTORY
On February 21, 2007, Petitioner was found guilty after a jury trial of
kidnaping in the commission of a bank robbery, in violation of 18 U.S.C. §
2113(e) (2000); possession of a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2000); and possession
of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2000).
[Criminal Case No. 2:06-cr-002, Doc. 88: Jury Verdict].
Judgment was entered on September 13, 2007, and Petitioner was
sentenced to a total of 552 months’ imprisonment.

[Id., Doc. 102:

Judgment]. Petitioner appealed and on July 28, 2008, the Fourth Circuit
Court of Appeals affirmed Petitioner’s conviction. The Fourth Circuit Court
of Appeals mandate issued on September 29, 2008. [Id.]. Petitioner filed a
petition for certiorari with the U.S. Supreme Court, which petition was
denied on January 21, 2009. Parker v. United States, 555 U.S. 1147, 129
S.Ct. 1022, 173 L.Ed.2d 310 (2009).
Petitioner placed the instant petition in the prison mailing system on
February 7, 2013, and it was stamp-filed in this Court on February 19,
2013. [Doc. 1]. In his sole claim in the § 2255 petition, Petitioner contends
that his Sixth Amendment right to trial counsel was violated because his
waiver of his right to trial counsel was not made voluntarily or knowingly.
[Id. at 4].
STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings, sentencing courts are directed to promptly examine motions
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to vacate, along with “any attached exhibits and the record of prior
proceedings” in order to determine whether a petitioner is entitled to any
relief. After having considered the record in this matter, the Court finds that
no response is necessary from the United States.1 Further, the Court finds
that this matter can be resolved without an evidentiary hearing.

See

Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
DISCUSSION
On April 24, 1996, Congress enacted the Antiterrorism and Effective
Death Penalty Act (the “AEDPA”).

Among other things, the AEDPA

amended 28 U.S.C. § 2255 to include a one-year statute of limitations
period for the filing of a motion to vacate. The limitation period runs 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;

1

Rule 4(b) provides that the Government should be required to respond to a motion to
vacate only in the event that such motion is not dismissed on initial review. Here, the
Court has determined on initial review that Petitioner’s motion to vacate should be
dismissed without first requiring a response from the Government. Accordingly,
Petitioner’s Motion to Consider the Government’s Failure to Oppose the Petitioner as an
Admission of Error and to Grant the Relief Requested [Doc. 4] is without merit and will
also be denied.
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(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)(1)-(4).
Here, Petitioner’s conviction became final on January 21, 2009, when
the United States Supreme Court denied certiorari. See Clay v. United
States, 537 U.S. 522, 525 (2003). The one-year limitations period then ran
until January 21, 2010. Petitioner placed the instant § 2255 petition in the
prison mailing system on February 7, 2013, and it was stamp-filed in this
Court on February 19, 2013. See [Doc. 1 at 19]. Because Petitioner did
not file the instant § 2255 petition within a year of when his conviction
became final, his petition is untimely.
Petitioner contends that “[d]ue to the petitioner’s inability to make a
knowing, voluntary, and intelligent ‘waiver’ of counsel, the court never had
jurisdiction to place him on trial for the charges; therefore, the petitioner is
‘actually innocent’ of the charges, which tolls the one-year statute of
limitations set forth in the AEDPA.” [Doc. 1 at 18].2 This contention is

2

Based on Petitioner's discussion of timeliness, the Court finds that the rule articulated
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without merit. Even if Petitioner could show that his waiver of his right to
trial counsel was not intelligent or voluntary -- which he cannot -- this would
not excuse him from the one-year limitations period under AEDPA.
Furthermore, an unintelligent and/or unknowing waiver of trial counsel
would not render Petitioner “actually innocent” of the charges against him.
In sum, the petition is untimely and will, therefore, be dismissed.3
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 (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 (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.
in Hill v. Braxton, 277 F.3d 701(4th Cir. 2002), has been satisfied. In Hill, the Fourth
Circuit found that district courts are required to advise a pro se petitioner that his
habeas motion or petition is subject to dismissal as time-barred under the AEDPA, and
to give petitioner an opportunity to explain his delay before entering a sua sponte
dismissal of the case. Id. at 706.
3

On July 15, 2013, the Court allowed a motion to amend by Petitioner to add a claim
under Alleyne v. United States, No. 11-9335 (June 17, 2013). Petitioner is not entitled
to relief under Alleyne, however, as his petition is untimely under Section 2255(f)(1),
and the Supreme Court has not held that Alleyne is retroactive to cases under collateral
review for purposes of rendering that claim timely under Section 2255(f)(3).
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473, 484-85 (2000). 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 the Petitioner’s Section 2255
Motion to Vacate, Set Aside, or Correct Sentence [Doc. 1] is DENIED and
DISMISSED.
IT IS FURTHER ORDERED that the Petitioner’s Motion to Consider
the Government’s Failure to Oppose the Petitioner as an Admission of
Error and to Grant the Relief Requested [Doc. 4] is DENIED.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: August 16, 2013

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