Opinion
NO. 5:13-HC-2274-BO
09-06-2018
DERRICK LAMONT ROBERTSON, Petitioner, v. CRAIG APKER, Respondent.
ORDER
The matter is before the court on petitioner's unopposed "Motion for Resentencing Order" (DE 35). In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and transfers the action to the sentencing court.
STATEMENT OF THE CASE
For ease of reference, the statement of the case as previously set forth in the court's May 23, 2018, order is as follows:
On June 26, 2000, United States District Court Judge Malcolm J. Howard accepted petitioner's guilty plea to conspiracy to distribute and possess with the intent to distribute cocaine and cocaine base (crack), in violation of 21 U.S. C. § 846 (count one), and possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g) (count three). United States v. Robertson, No. 5:00-cr-00103-H (E.D.N.C. June 26, 2000). On January 3, 2001, Judge Howard sentenced petitioner to concurrent terms of 262 months (count one) and 120 months (count three) imprisonment. Id. (Jan. 3, 2001).
On December 27, 2013, petitioner filed this petition for a writ of habeas corpus pro se pursuant to 28 U.S.C. § 2241. On September
30, 2014, the court granted respondent's motion to dismiss, and dismissed the action without prejudice. Specifically, the court dismissed the action as duplicative of a counseled motion for reconsideration or, alternatively, for§ 2241, relief, which was filed in petitioner's criminal action-United States v. Robertson, No. 5:00-CR-103-H-1 (E.D.N.C.). Petitioner appealed the court's dismissal of the instant petition. On November 8, 2017, the Fourth Circuit Court of Appeals affirmed the district court's judgment in part, insofar as the instant action raised the same grounds for relief as the counseled motion filed in petitioner's criminal action. The court of appeals, however, vacated the court's judgment with respect to any argument raised in the pro se petition under §§ 2241, 2255(e) not encompassed in the counseled motion. Petitioner subsequently filed a motion for disposition (DE 25) and respondent filed a motion to correct the judgment and stay (DE 26).((DE 28), pp. 1-2).
On May 23, 2018, the court granted respondent's motion to stay pending the issuance of the mandate in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), and reserved ruling on petitioner's motion for disposition. On June 28, 2018, petitioner filed a motion for adjudication. On June 29, 2018, respondent filed a notice indicating that the mandate had been issued in Wheeler. Then, on July 6, 2018, the court entered an order lifting the stay, directing the clerk of court to reinstate the action, and directing the parties to file any supplemental briefing within 14 days of the date of that order. The parties subsequently filed their respective supplemental briefs.
Respondent, in his supplemental brief, agreed that petitioner demonstrated that he satisfies the savings clause of 28 U.S.C. § 2255(e), and is actually innocent of count three (possession of ammunition by a felon). Respondent, however, disputed petitioner's career offender challenge arguing that it is not the kind of fundamental sentencing defect that satisfies Wheeler and requested that the action again be stayed pending the outcome of Lester v. Wilson, No. 13-6956 (4th Cir.). On July 25, 2018, the court granted respondent's motion to stay pending the Fourth Circuit's order in Lester, dismissed without prejudice petitioner's motion for disposition and motion for adjudication, and directed the clerk of court to administratively close this action. On August 6, 2018, petitioner filed an unopposed pleading captioned "Motion for Resentencing Order," in which he asks the court to "waive his challenge to his career offender status and proceed with his resentencing rather than staying his case pending the adjudication of Lester." ((DE 35), p. 2).
DISCUSSION
Respondent concedes that petitioner is actually innocent of count three-possession of ammunition by a felon. ((DE 32), p. 1). Respondent further agrees that petitioner's conviction for possession of ammunition by a felon should be vacated and that petitioner should be re-sentenced. (Id.) Petitioner seeks to dismiss the remainder of his § 2241 petition. (See (DE 35)). Based upon the foregoing, the court GRANTS petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. §2241.
The court now is in the difficult position of being required to vacate a sentence imposed by another judge in this district. Other courts under similar circumstances have found that the interests of justice weigh in favor of transferring actions in this procedural posture to the sentencing court. See Outlaw v. Craig, No. 5:08-cv-00889, 2010 WL 454925, at *4 (S.D.W. Va. Feb. 2, 2010); Hayden v. Rivera, No. 1:08-cv-813, 2009 WL 3247448, at * 2 (M.D.N.C. Oct. 6, 2009) (finding re-sentencing appropriate on Watson claim transferred from the United States District Court for the District of South Carolina to the sentencing court); Conley v. Crabtree, 14 F. Supp. 2d 1203, 1207-1208 (D. Or. 1998) (finding that if an action is within the class of cases in which a petitioner challenges his conviction and sentence through a § 2241 petition, then the case should be transferred to the district in which the petitioner was convicted and sentenced). Based upon the foregoing, the court finds that it is in the interest of justice to TRANSFER this action to petitioner's criminal action, United States v. Robertson, No. 5:00-cr-00103-H (E.D.N.C.).
CONCLUSION
For the foregoing reasons, the court GRANTS petitioner's § 2241 petition for a writ of habeas corpus (DE 1). The clerk of court is DIRECTED to transfer this action to petitioner's criminal action, United States v. Robertson, No. 5:00-cr-00103-H (E.D.N.C.). This court reserves ruling on petitioner's "Motion for Resentencing Order" (DE 35) for the sentencing court. Cf. United States v. Hodge, No. 17-6054, 2018 WL 3999898, at *4-5 (4th Cir. Aug. 22, 2018).
SO ORDERED, this the 6 day of September, 2018.
/s/_________
TERRENCE W. BOYLE
United States District Judge