Whitener v. USA

Filing 9

ORDER granting 8 Motion for Reconsideration; FURTHER ORDERED that upon Initial Screening, the contentions raised in the petition are untimely and the petition is DISMISSED WITH PREJUDICE. Signed by District Judge Max O. Cogburn, Jr on 12/2/2014. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00600-MOC
ERIC WHITENER,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the court on petitioner’s Motion to Reconsider. In moving to
reconsider, petitioner contends that the instant Motion to Vacate, Set Aside, or Correct Sentence
is not a second or successive petition despite having filed at least two prior petitions with this
court (3:97cv262; 3:13cv181), a petition in the Eastern District of Kentucky (see ¶ 11(a) of
Motion), and a petition in the Eastern District of North Carolina (see ¶ 11(b) of Motion), all
attacking his November 26, 1990, conviction. Giving petitioner the benefit of the doubt and that
the petition is not barred as a second or successive petition under AEDPA, the court will grant
the motion to reconsider, strike the previous order and Judgment, and conduct an initial
screening of petitioner’s contentions.
I.
The court has conducted an initial screening of the petition under Rule 4(b) of the Rules
Governing § 2255 Proceedings, and finds that the petition has been signed under penalty of
perjury.

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II.
Next the court has reviewed the substance of the petition to determine what contentions
petitioner is attempting to assert. The petitioner has asserted the following contentions:
I.

The jury instructions given by the court in 1990 were invalid in light of the
Supreme Court’s [1995] Bailey decision;

II.

The jury instructions given by the court in 1990 were not valid in light of
Rosemond v. United Sates, 134 S.Ct. 1240 (2014); and

III.

Petitioner’s multiple 924(c) convictions and sentences for aiding and abetting
violate the Double Jeopardy Clause under Rosemond.
III.

As to petitioner’s first contention under Bailey v. United States, 516 U.S. 137 (1995),
such claim is patently time barred. The AEDPA established a one-year grace period, ending on
April 24, 1997, in which a defendant could file a § 2255 motion based on claims existing on the
date of its enactment, which was April 24, 1996. Thus, petitioner had up to April 24, 1997, to
submit his claim under Bailey.
Petitioner filed a habeas petition on May 2, 1997, which he later voluntarily dismissed.
Whitener v. United States, 3:97cv262 (W.D.N.C.). Even assuming that petitioner raised his
Bailey claim in that petition and that such was submitted to prison authorities for mailing before
April 24, 1997, such filing does nothing to preserve such claim for refiling some 17 years after
the deadline set by Congress in the AEDPA has passed. Thus, petitioner fails to state a claim
upon which this court could grant relief as such claim is time barred.

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IV.
As to contentions two and three, which the court considers to be “Rosemond claims,”
petitioner contends that such claims are timely under Section 2255(f)(3) as they only arose after
Rosemond was decided in 2014. Section 2255(f)(3) 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—
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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.
28 U.S.C. § 2255(f)(3) (emphasis added). Petitioner’s second and third contentions are time
barred because Rosemond is not retroactively applicable to cases on collateral review.
In Rosemond v. United States, ___ U.S. ___, 134 S.Ct. 1240 (2014), the Supreme Court
held that to prove a defendant aided and abetted the use of a firearm during a crime of violence
or a drug trafficking crime under 18 U.S.C. § 924(c), defendant must have had advance
knowledge that a gun would be used in the underlying drug trafficking offense or crime of
violence. Id. at 1241. In this case, petitioner contends that in 1990 the government failed to
prove he had any advance knowledge that guns would be used and that his aiding and abetting
convictions now violate Rosemond.
While Rosemond makes clear that advance knowledge is now an essential element of
aiding and abetting use of a firearm in a drug trafficking offense or a crime of violence, there is
absolutely no indication in that decision or cases which have subsequently considered that
decision that Rosemond has any retroactive impact on cases on collateral review. Courts that
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have addressed the issue have determined that Rosemond has only prospective application. See
United States v. Davis, 750 F.3d 1186, 1192–93 (10th Cir. 2014) (finding that“[a]fter Rosemond,
a jury instruction on aiding and abetting § 924(c) should address the defendant's advance
knowledge of the gun.”); Gentile v. Fox, 2014 WL 3896065, *8 (C.D.Cal. July 11, 2014)
(finding that “there is no indication in the decision that the rule declared therein [Rosemond]
regarding what it takes to aid and abet a § 924(c) offense would apply retroactively on collateral
review.”). This court agrees that Rosemond has no retroactive application to cases on collateral
review. Thus, because Rosemond is not retroactive, petitioner’s second and third contentions are
time barred.
IV.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, this court declines to
issue a certificate of appealability as petitioner has not made a substantial showing of a denial of
a constitutional right. 28 U.S.C. § 2253(c)(2); 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); Slack v.
McDaniel, 529 U.S. 473, 484–85 (2000) (in order to satisfy § 2253(c) when court denies relief
on procedural grounds, a petitioner must demonstrate both that the dispositive procedural ruling
is debatable, and that the petition states a debatable claim of the denial of a constitutional right).
ORDER
IT IS, THEREFORE, ORDERED that petitioner’s Motion to Reconsider (#8) is
GRANTED, and upon reconsideration the previous Order (#6) and Judgment (#7) are
WITHDRAWN.

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IT IS FURTHER ORDERED that upon Initial Screening, the contentions raised in the
petition are untimely and the petition is DISMISSED WITH PREJUDICE.

Signed: December 2, 2014

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