AO 243 - (Rev. 10/07) . Page 1 Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody (Motion Under 28 U.S.C. 2255) i - Instructions 1. To use this form, you must be a person who is sewing a sentence under a judgment against you in a federal court. You are asking for relief from the conviction or the sentence. This form is . your motion for relief. . . 2. You must file the form in the United States district court that entered the judgment that you are challenging. If you want to challenge a federal judgment that imposed a sentence to be served in I the future, you should file the motion in the federal court that entered that judgment. 3. Make sure the form is typed or neatly written. I 4. You must tell the truth and sign the form. If you make a false statement tf a material fact, you . 3 may be prosecuted for perjury. . 5. Answer all the questions. You do not need to cite law. You may submit additional pages if . I necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum. 6. If you cannot pay for the costs of this motion (such as costs for an attomey or transcripts), you may ask to proceed in forma paupents (as a poor person). To do that, you must ill] out the last I page of this form. Also, you must submit a certificate signed by an ofhcer at the institution where you are confined showing the amount of money that the institution is holding for you. - 7. In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge or division (either in the same district or in a different district). you must tile a separate motion. I 8. When you have completed the form, send the original and two copies to the Clerk of the United States District Court at this address: Clerk, United States District Court for - . Address I City, State Zip Code 9. You must include in this motion gl,] the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fall to set forth all the grounds ln thismotion, you may be barred from presenting additional grounds at a later date. 10. If you are under a sentence of death, you are entitled to the- . - I assistance of counsel and should request the appointment of counsel. - Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 1 of 14 a . Page 2 . MOTION UNDER 28 U.S.C. 2255 TO VACATE, SET ASIDE, C1I. - SENTENCE BY A PERSON IN FEDERAL CUSTODY Name (under wma; you wm Docket or Case No.: . Tenell Demtrius McCuIIum Place of Confinement: Prisoner No.: CCM Raleigh, Butner NC - 25887-056 . UNITED STATES OF AMERICA Movant umm. me under wmcuyuu wm - Ten?elI Demtrius MoCuIlum MOTION 1. Name and location of court that entered the judgment of conviction you are challenging: I United States District Court, EDNC (Southem Division), Wilmington NC Criminal docket or case number'(if you know): 2. Date of the judgment of conviction (lf you know): 11/6/2009 Date of sentencing: 9/18/2009 3. Length of sentence: 1 year and 1 day 4. Nature of crime (all counts): Felon in Possession 18 USC 922g 5. What was your plea? (Check one) 5 (1) ?Not'gu1lty EI (2) Guilty EY (3) Nolo oontendere (no contest) EI If you entered a guilty plea to one count or indictment. and a not guilty plea to another count or indictment, what did you plead guilty to and what did you plead not guilty to? 2 i 6. lf you went to t.rial, what kind of trial did you have? (Check one) Jury Judge only Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 2 of 14 -- Page 3 5 7. Did you testify at a pretrial hearing, trial, or post-trial hearing? Yes EI No . 8. Did you appeal from the judgment of convictionyou did appeal, answer the following: Name of court: . Docket or case number (if you know)-: I Result: Date of result (if you know): - . Citation to the case (if you know): Grounds raised: I Did you Hle a petition for certiorari in the United States Supreme Court? Yes E1 No If "Yes." answer the following: (1) Docket orcase number (if you know): I (2) Result: (3) Date of result (if you know): i (4) Citation to the case (if you know): (5) Grounds raised: . 5 10. Other than the direct appeals listed above. have you previously filed any other motions, . petitions. or applications concerning this judgment of conviction in any court? Yes No 11. If your answer to Question 10 was 'Yes," give the following information: - (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 3 of 14 - Page 4 (4) Nature of the proceeding: (5) Grounds raised: (6) Did you receive a hearing where evidence was given on your motion, petition, or application? Yes El No El 5 (7) Result: - (8) Date of result (if you know): If you Bled any second motion, petition, or application, give the same information: (1) Name of court: (2) Docket or case number (lf you know): . (3) Date of filing (if you know): (4) Nature of the proceeding: I (5) Grounds raised(6) Did you receive a hearing where evidence was given on your motion, petition, or application? Yes EI No . cn Result: (8) Date of result (if you know): 1 Did you appeal to a federal appellate court having jurisdiction over the action taken on your motion, petition, or application? I (1) First petition: No CI (2) Second petition: Yes N0 Cl Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 4 of 14 Page If you did not appeal from the action on any motion, petition, or application, explain briefly i why you did not: 12. For this motion, state every ground on which you claim that you are being held in violation of the Constitution, laws. or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. - cnourvn 0NE: 1 Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): Legally innocent per United States v. Simmons (see attached memorandum in support) I . Direct Appeal of Ground One: - I (1) If you appealed from the judgment of conviction, did you raise this issueyou did not raise this issue in your direct appeal, explain why: United States v. Harp was controlling at the time but has since been overtumed i Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or applicationyour answer to Question ls "Yes," state: I 'I`ype of motion or petition: i Name and location of the court where t.he motion or petition was filed: Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 5 of 14 . Page 6 . Docket or case number (if you know): . Date of the oourt's decision: - Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion, petition, or application? Yes EI No El (4) Did you appeal from tl1e denial of your motion. petition, or applicationyour answer to Question (4) is "Yes.' did you raise this issue in the appeal? Yes No (6) If your answer to Question (4) is "Yes.' state: Name and _location of t.he court where the appeal was filed: Docket or case number (if you know): - Date of the court's decision: i Result (attach a oopy of the court's opinion or order, if available): (7) If your answer to Question (4) or Question (5) is explain why you did not appeal or i raise this issue: cnouun Two; Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): I Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 6 of 14 i . Page 7 Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issueyou did not raise this issue in your direct appeal, explain why: Post-Conviction Proceedings: I (1) Did you raise this issue in any post-conviction motion, petition, or applicationyour answer to Question is "Yes,' state: - i 'I`ype of motion or petition: - Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion, petition, or application? I Yes No cn (4) Did you appeal from the denial of your motion, petition, or applicationyour answer to Question (4) is "Yes,' did you raise this issue in the appeal? Yes EI No (6) Ifyour answer to Question (4) is 'Yes," state: . Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: . . Result (attach a copy of the court's opinion or order,'if available): . Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 7 of 14 Page 8 (7) If your answer to Question (4) or Question (5) is explain why you did not appeal or raise this issue: an GROUND THREE: Supporting facts (Do not argue or cite law. Just state the specific facts t.hat support your claim.): i Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issueyou not raise this issue in your direct appeal, explain why: i Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or applicationyour answer to Question is "Yes,' state: 'I`ype of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (lf you know): Date of the court's decision: Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 8 of 14 Page 9 Result (attach a copy of the court's opinion or order. if available): (3) Did you receive a hearing on your motion, petition, or application? . . Yes No El (4) Did you appeal from the denial of yo1u? motion, petition, or applicationyour answer to Question is 'Yes." did you raise this issue in the appeal? Yes CI No EI (6) Ifyour answer to Question (4) is 'Yes," state: EUR Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the oourt's opinion or order, if available): (7) If your answer to Question (4) or Question (5) is explain why you did not- appeal or raise this issue: GROUND FOUR: I Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): Case 7:08-cr-00072-F Document 43' Filed 04/04/12 Page 9 of 14 Page 10 Direct Appeal of Ground Four: (1) If you appealed from the judgment of conviction, did you raise this issueyou did not raise this issue in your direct appeal, explain why: Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? Yes El No Cl (2) Iflyour answer to Question is "Yes,' state: 'l`ype of motion or petition: Name and location of the court where the motion or petition was filed; .. Docket or case munber (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion, petition, or application? Yes C1 No CI (4) Did you appeal from the denial of your motion, petition, or applicationyour answer to Question (4) is "Yes,' did you raise this issue in the appeal? Yes No - (6) Ifyour answer to Question (4) is 'Yes," state: Name and location of the court where the appeal was liled: Docket or case number (if you know): Date of the court's decision: I Result (attach a copy of the court's opinion or order, if available): Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 10 of 14 2 - Page 11- . - (7) If your answer to Questlon (4) or Question (5) is explain why you did not appeal or raise this issue: 13. Is there any ground in this motion that you have not previously presented ln some federal court? - If so, which ground or grounds have not been presented, and state your reasons for not presenting them: I I 14. Do you have any motion, petition, or appeal (filed and not decided yet) in any oourt for the judgment you are challenging? El No If "Yes,' state the name and location of the court. the docket or case number, the type of proceeding, and the issues raised. 1 . 15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment you are challenging: At preliminary hearing: Federal Defenders Office, EDNC At arraignment and plea: i Joseph Ross, Federal Defenders Offlce, EDNC (C) At man At sentencing: - Joseph Ross, Federal Defenders Office, EDNC - Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 11 of 14 Page 1 2 On appeal: In any post-conviction proceeding: . On appeal from any ruling against you in a post-conviction proceeding: I 16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in . the same court and at the same timeyou have any future sentence to serve after you complete the sentence for the judgment that you are challenging? If so. give name and location of court that imposed the other sentence you will serve in the i future: . Glve the date the other sentence was imposed: Give the length of the other sentence: Have you filed. or do you plan to file, any motion, petition, or application that challenges the judgment or sentence to be served in the futureCase 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 12 of 14 Page 13 18. TIMELINESS OF MOTION: If your judgment of conviction became final over one year ago. you I must explain why the one-year statute of limitations as contained in 28 U.S.C. 2255 does not . bar your motion} . See memorandum in support; united States v. Simmons decided 1 year after my judgment The Antiterrorlsm and Effective Death Penalty Act of 1996 as contained in 28 U.S.C. 2255, paragraph 6, provides in part that: A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of -- 2 (1) the date on which the judgment of conviction became final; (2) the date on impediment to making a motion created by governmental action in violation of the Constitution or laws of the United Statesis removed, if the movant was prevented from making such a motion by such govemmental 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. Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 13 of 14 Page 14 - Therefore, movant asks that the Court grant the following relief: or any other relief to which movant may be entitled. I Signature of Attorney (if any) I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct . and that this Motion under 28 U.S.C. 2255 was placed in the prison mailing system on (month, date, year). 1 Executed (signed) on (date). Signature of Movant . If the person signing is not movant, state relationship to movant and explain why movant is not signing this motion. Mr. McCuIlum has permitted me to file the 2255 on his behalf Case 7:08-cr-00072-F Document 43 Filed 04/04/12 Page 14 of 14 04/03/2012 13:05 FAX 8108727218 BLADEN C0 DSC rr,. 002/005 I.-- EXHIBIT I I I STATE NORTH norm nu . nun District Nm. I JUDGMENT SUIPENDING SENTENCE - FELDNY 5 INTERMEDIATE PLINISHIAINT I -- can 15A-1341 #1842. -1040 hma.2 -1m mma 2 r"1pIod to wanfaundgu pladnnannuana I o?m?.n 0?n 0|hn|oD|b` cn,. I 07CRS50N2 LARCENYOFAFIREARM 14..7gm mum [Inv [Iva i U2. bauun acnurt . - 1. mnga nlunlnnan nulhanznd undar .8. I I 2. I 0. mnhnaua I 4. md: pmmu pumuanm .8. I 5. 6.8. -- - - I 1. 6.8.14-200.0. (A00-OR-281 nqumd) I 0. 1hda1ho 6.8.14-l00.20. 0._0nu ma uemndamls danalhdaanduhm. . 10. 11. mma Umatarvahicle D12. rgdnuzhan nm un duhndanznnupnmnar I `1 0 .ht n| I en??.mumon1o?I mam - ant. I non. m?n nam. I I- Iadfnr ud mon1|nd111o00Ihn0ar1lhoIrn L-L- nun; - {hl Ihd I . l?w|nHho anton?aImp?ood0b0vo. im |1|?nm|nI uImdbra TmMoll 0n|00I F1 unnupanhnd I 1. The mlumer z. 1'no ??rro?I?no Im|1?||nr1y?f1h|IequIlImI|1I| oonton??dt?a nammunliy punishment. or 6.8. 16A-riexmh I aha nhinur In nmanad no nn hunnadlan punuhmant. . 8. Tha uhm 4.'I11nhwo rI?d?I shall-. In?1ho I v?y?row 5roqu"E)"' . 3 1. munmm muon-cn-010 num) muws: ww- i. .. I REIT W. I . '8onho?hod"Re (lnihnlsenun Isln -1 IVD ht Jil al3.8.7A-304 mh. com. i Case 7:08-cr-00072-F Document 43-1 Filed 04/04/12 Pa 1 0f4 04/03/2012 13:05 FAX 8108727218 BLADEN C0 CSC @003/005 arecw. ren anx emsnnena Ann renews CONVICTED OF YI I I INVOLVINO PHYSICA MENT OR SEXUAL ABUSE OF A - .8. NOTE: NOTE: 1M-1340.HM. - 7. Spaalal Far - 0.5. Tha dafanllanl haa haan al an whlah Ia a rapanahla dallnad In 0.8. and muat I aha Num 8. adm. ba In lha pmanca ol. orlhund In or on ma uma umn aime allan:. I Dt ln oo1oul1o-hand monllorlnq lar lna aafandanra nawral Ilia. naman) Il': I 8. Spaclal For 0?lI'anna Tha Saxual Abuao 0fA Minor - 0.8. I ln lnanta aumnoachuual anuaa ?o'o mma; ma dalindantmaynalnida/an a nauaa/an/d w/In mym/nor 1'ha has haan ?aInl?lall af an allanaawhlah lnvalvaa lha auual ahuaa afa nlual. . - . I gaglalar aa 14108.7 lflna allilnaa Ia a ccnulallan aa d:llII1ad hy ul ml. a wuna 3. Mmacmmunlcala with. ha In lha pnaanca of, In aran Ina pramlaea allha ?f1ho ?lIonooo|l|lIlo-baud for lho dtfandanfa nalunl llh. (AOC.-GR-815 raquhcl) . I Q. Suhmll la manlualng far any raquhad) 7. I I 9. Ofhnut The Or Ilanhl Abuse Of A - 0.8. 15A-1343012) - NOTE: I I . . 1. Raglauaa raqdrad by 3.8. clfmaa lo a npmahla common aa dalnall by I - 2. Farldpala ln auda avaluallnn and uaainanl aa Ia nananary It aanplala a pnacrlhad sauna afpaydnlalrlc. paychalaglaal. ar alhar I 3. allnaclhnaa. I 4. Nat raalda ln a hauaahald any mlnar alher lhan lha named wow. lf It I llnda lt la unllalgalhaltha dalindanfa hlmful or nlwalva uandunl nnur and that I1 would ha In but Internat of I ?n|a(1an) naman balm ma mal ln lha aama haunhald Iha IIN UM amanammxu I 6. Sulnnk la manllulng lha Ilh. nqulraaHifi OTHER SPEC CONDITIONS I I_i tj I EI Clhar Spneial I .1 EJ . CONDITIONSFORP ONS CTEDOFADOMESTIC FFENSE rj? Tha defendant ahall i nalanmawllhin fastof atany a. B. fully eumply any 503 Damaallc Vlalanca Pralaullva Onlar In alhat. Tha abova am lnnarporatad in lha "Judgrnanl Son1an?tharact I . -. . FT. nm -?'rwI .7 1 I I Aqgcl.-pg. M. 1* 1y;. M. Ill IIHQICII I Kllg. . azannanlmnauvacmnalmacnau I Case Document 43-1 Filed 04/04/12 Page 2 of 4 I 04/03/2012 13:08 FAX 9108727218 BLADEN 80 CSC 004/005 I . l. II In STATE VERSUS 1} 1 8 I INTE I I 7 I- NOTE: tha thla papa ln ccnlunctlon "lrnpalrad Judgrnant Ianuanco"l AOGCRIDI, "Judgrnant Iantartca 'dudgrnant - or "Drdar Dn - . I I md"} . on. ng' a dt oct.l?rth?ln Sanmnoc" entered the bo . tg dalindanesh ll-dl follow Ill cf . 1. ?aciaI Probation - .8. 68. and A. sn VJ daya months hcuro ln custody of N.C. DOC. 1*2 County. I [j B. l.r..shall upln report ln aobar oondtlon to conllhuc carving this tonn cn samc day of wack I oonacnutlvc waclta, and ahall nmaln ln cuatody dunng tha uma hours cach untll completion of the actlva ?r?dar?od. D- 111la aan:?ncc shal ba atthc probatlon oflloer within dayc rnonmc i E. Paylall a. A I F. Work mlnac lc gmboc abusa traalmant unlt la 6.8. 15A-1351lh) umm onmilrcosm ?o??onboH. . cr: I SERVBJAIL. DAYS 14 DAYS lj 2. - 6.8. mm] I fn dorm oN??#lmlM` I . a parlod of days. I Imontha, and abldc by all rules and altar - ragulatlonc ofthat programHcuac Arraatl/l/lth - 6.8. Ba lc hcusc amst for parlcd of dm month!. Ind aubmlt lc monltorlng and ablda by all lull!. mnulctlona and ofthe pro regarding oloch?onic monllorlng, and pay prcautad under 6.6. pursuant to the sohadulc out under I 4-. IntanoIvo Program - 14354620.:) . Submit to by aaslgnad to Pmbalon Program l? 6-8- 1458-26207). i pcrlod ol months, and rulcc adoptad bythatprogram. - I Othar: I [1 I. Day?Ropcrt!n| Dcntar 6.8. - byu Day Gcntarforn por|?d cf EI Wi- months. and by all rulcc ond rcguladcns of program. Othar: - . raatmc {ortho pm ram at gzovldco 62 ?fChaptar?A ofthc G-aharal Statutic and report cn - regular undo for a to ln court drug acrconlng or tcallng. and drug or olcohpl tmatmanl I Case 7:08-cr-00072-F Document 43-1 Filed 04/04/12 Page 3 of 4 04/03/2012 13:08 FAX 8108727218 00 DSC 005/005 REGULAR CONDITIONS OF PROBATION - . . 1 . 4- a Yi? 1 nut: 1hGa8da_Iandant rIo o:;nao in I zfohasg or mt grup and ahlgnolymx rulaa oltho gl au:port I I 1 I2 . ..1anoonrplor . CONDITIONS OF PROBATION 6.8. 15A- h1 1433-282 . . . -1 .. oolonoant allall also comply oll1II\ lha lolowlno apadal mah Ilto court llnua ara roaaonahly nalalad lo Illa dalandantla I 12. llarandarlha dafandarrtla Ieanaa to Ilra Clort oI'8r>>orior notlra Dlvlabrr ofMotor\/bhldaa and not I ma a motor RIM tor a parloo ot or until raloanaad hy lha Dlvlolon ot Motor Vohlolao. In lalar. E13. wnlla atandant la tor followup purpmaa uhloh are raaoonaa rahlad to lha oatanrlanra proharlon ouparvloloot atolon pooda oonlrollod auhatanoaa oonoahand ehld pornography . B14. :'o:oaoa or :5 ?onlrolanitw auaalanoa odolnal onnu alnnadon an lmownor uaara. ut{. aubatnooat and not lla praoant at OPIJQIHII any pla?o?uao:1ora Illopal dnrqa or . 16. may who ago/or olood apadman for analyah otlha poaalhle pnraanoa of a pnohlhlod or aloohol. when lnalruotad hy Ill! probarlon oar. 1E 8 or tha Cana no earl Dau . manor . . .1. 2*1 .. I aarvloa eoordlnatar and pay Ira foalpruollhad by 6.8. purauarrl to tha aohadula aal out under monetary E1. $0:1 daya otlhla udprnant and hotlwa aorvl%ASc I mgxar aa a MW GT Wt avamallon. aa coma mE I E10. Not lhroatan. ha orwortolaoa on orhava any oonlaot an an . "ConI|ot" - rrlaal. dlrau or IW moons lndudlng lard not Imllad to pamonal eontad, a-mall. I gll-gluing, tmoahrla maohina or Ilrrouplr my other param. except - I no 5?le:rn NOTT0 PCSSESS ANY FIREARMS. i 21. Comply the Spodal Of Probation volddl an aal fom on AOGOR-GUI. Papa I Aheallnolnraa hold In opan oourtirr the appolnlad I . . . . DEROF EAL ENTRIES .. . I 1. It Ia ORDERED that lha Clark dollvor hg ooplaa of Judgment and to tha or other qualltlod - - a and that tho oltloor cause the defendant to he dallvarad with than ooplos to the euatody of the aponoy named on tha rworaa to aorvo tha aantanoo lmpoaod or untll Ura dafandant alrall have oompllad with the of appeal. I I 2. The defendant givaa notloa of appeal from tho judgment of tha ttal oourt to the appellate alon. App I antrloa and any conditions I of on loan 11 ff SIGNA UDGE 9-11-2007 ?.JAclt HCOIG JR. . TI Nfiw Qi .-- . QI CERTIFICATION I ohman rlraolral nd orlhe loal Illalfhi o. Flnoinpa Aa 1?a naaulrad owl aanlpla lnoecaotn pam, - 1. r=lna Andante Aafo- Forsoar AOC-DRAM. Eldo Rav. hhlarlal aqraoaa Ia II lla aa napluaaga. - 2007 Otloo otlha couru Case 7:08-cr-00072-F Document 43-1 Filed 04/04/12 Page 4 of 4 EXHIBIT 2 I -UNITED- STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA . 4 DIVISION NO. 7 - UNITED STATES OF AMERICA - I MEMORANDUM OF LAW IN SUPPORT v. OF MOTION TO VACATE CONVICTION AND SENTENCE UNDER 28 U.S.C. TERRELL DEMTRIUS MCCULLUM 2255 i 4 INTRODUCTION - In light ofthe Fourth Circuit Court of Appeals' decision in United States v. Simmons, 649 F. 4 3d 237 (4th Cir. 2011), the Defendant, Terrell Demtrius McCullum, moves this Court, pursuant to 4 28 U.S.C. 2255, to vacate his sentence and conviction for being a felon in possession of a firearm 4 in violation of 18 922(g)(1) . In support of his reque t, Mr. McCu.llum shows the Court his basis for relief 4 STATEMENT or FACTS On July 30, 2008, Mr. McCullum was named in a one--count indictment and charged with being a felon in posses ion of a firearm in violation of 18 U.S.C. 922(g)(1). Following his indictment, Mr. McCul1um.iiled a Motion to Dismiss arguing that he was legally innocent of the charge. Specifically, he wrote that light of the Supreme Court decision in United States v. 4 Rodriguez, 128 1783 (2008), and in consideration of the Sixth Circuit's decision in United States v. Pruitt, 545 .3d 416 (6th Cir. 2008), Mr. McCullum contends he is legally innocent of the crime of possession of a Erearm by a fe1on." 16]. On June 8, 2009, this Count, relying on 1 Case 7:08-cr-00072-F Document 43-2 Filed 04/04/12 Page 1 of 11 United States v. Harp, 406 F.3d 242 Cir. 2005), and United States v. Haoker, No. 361-FL, 2009 WL 1065865, (E.D.N.C. April 20, 2009) denied Mr. McCullum's Motion to Dismiss the Indictment. Mr. McCullum then tered into a written plea agreement with the government. 20]. His plea agreement contained a standard appellate waiver provision. However, the government specifically agreed to except Mr. McCu1lum's assertion of actual innocence from this waiver. 20, On June 8, 2009, Mr. McCullum pleaded guilty to the i indictment on the condition that he could continue to seek relief for his actual innocence claim on appear. [Ds 19]. On September 18, 2009, this Court sentenced Mr. McCullum to imprisonment in the custody ofthe Bureau of Prisons for 12 months and 1 day. Mr. McCullum is currently serving a period of conitlnem at CCM Raleigh (Bannum Place) with an expected release date of June 1, 2012. I. UNDER SIMMONS, MR. MCCULLUM IS NOT A FELON FOR PURPOSES OF 922(g)(1). As with all criminal matters, the government bears the burden of proof beyond a rea onable doubt with respect to each ess tial element of the crime. In a "fe1on possession" case prosecuted I pursuant to 922(g)(l), the government's burden includes proving that the defendant was in fact previously convicted of a crime punishable by a term of imprisonment of morethan one year. United States v. Langley, 52 F.3d 602, 606 (4th Cir. 1995). Where a defendant's underlying conviction is a state conviction,_ the assessment of whether that conviction was punishable by imprisonment for more than one year is done "in accordance with the law of the jruisdiction in - i which the proceedings were held." 18 U.S.C. 921(a)(20). Accordingly, where federal proceedings occur in North Carolina, North-Carolina's state structured sentencing scheme governs the 2 . Case 7:08-cr-00072-F Document 43-2 - Filed 04/04/12 Page 2 of 11 I determination of whether an underlying state conviction was punishable by more than one year. Prior to Simmons, under the analysis set forth in Harp, 406 F.3d 242 (4th Cir. 2005), a defendant convicted under any North Carolina felony-class offense was deemed a "felon" for federal . purposes. When determining whether a prior North Carolina conviction was for a crime punishable by more than one year, the court considered the maximum sentence that could be imposed on a - hypothetical defendant with the worst prior record level and most aggravated sentencing range, not I the prior record level and WI tence range of the defendant before it. Id For all of the reasons discussed by the maj ority in the Simmons en banc decision, Harp was a decision incorrectly . analyzing North Carolina's substantive law. In contrast to the "hypothetical-defendant" approach discussed by the panel in Harp and - United States v. Jones, 195 F.3d 205 (4th Cir. 1999) the Simmons court adopted an individualized analysis. This approach tracks the logic set forth by the Supreme Court in Carachuri-Rosendo v. Holder, 130 S. Ct 2577 (2010) and United States v. Rodriguez, 533 U.S. 377 (2008). Post-Simmons, a court's determination of what constitutes a felony conviction under federal law i straightfoward: requires examination of three pieces of evidence: the offense class, the oii`ender's prior . record level, and the applicability of the aggravated sentencing range. All three appear promin tly on the page of an offender's state record of conviction." - Simmons, 649 F.3d at 247, n. 9. Under the Simmons court's deiinition of a felony offense, . I Mr. McCullum's prior North Carolina conviction is not a felony for the purposes of 922(g)(1) I because Mr. McCullum could never have been impri oned for more than one year for any of his prior G1'lmCSi1 Therefore, Mr. McCullum had not been convicted of a single crime punishable by a I Mr. McCullum pled guilty to the North- Carolina Class felony of larceny of a firearm. Exhibit - 1. The court determined he had 3 prior record level points, which equated to a prior record level of IL As the court sentenced him in the presumptive range, the maximum sentence Mr. McCullum could have received was 10 months. He was tenced to 8 tol0 months custody, which was suspended in lieu of 24 months of probation. 1 Case 7:08-cr-00072-F Document 43-2 Filed 04/04/12 Page 3 of 11 - i I term exceeding one year at the time he possessed the firearm for which he was federally indicted on July 30, 2008. Mr. McCullum is factually innocent ofthe federal crime of being a felon in possession of a firearm in violation of 922(g)(1), and it is patently imjust to let this conviction stand. H. MR. MCCULLUM MEETS TI-IE REQUIREMENTS NECESSARY T0 OBTAIN RELIEF UNDER 28 U.S.C. 2255. A motion to vacate under 28 U.S.C. 2255 is the proper vehicle for remedying Mr. McCullum's injury. Enacted to eliminate procedural ineHici cies associated with the writ of habeas corpus, 2255 is "identical in scope" to its traditional predecessor. Davis- v. United States, 417 U.S. 333, 343 (1974). Just as the Great Writ was "[c]onsidered by the Founders as the- highest i safeguard of liberty and "has long been available in the federal courts to indig prisoners . . . to test the validity of their detention, 2255 is available to provide relief to wrongfully imprisoned defendants such as Mr. Wilkerson. Smith v. Bennett, 365 U.S. 708, 712-13 (1961). 'I`he Fourth Circuit has specifically held that "a change in the law can serve as the basis for a section 2255 motion, whether the change is con titutional or nonconstitutional." United States v. Bonnette, 781 I F.3d 357, 364 (4th Cir. 1986), citing Davis, 417 U.S. 333 (1974). Were Mr. McCullum before this Court today, he could not be convicted of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). The writ of habeas corpus exists precisely to provide relief to people like Mr. McCullum--his conviction under 922(g)( 1) is clearly invalid, and he is legally innocent of that charge. Mr. McCullum meets both requirements neces ary . to obtain relief pursuant to 2255: he is in custody and this Motion is timely. - 4 . I I Case 7:08-cr-00072-F Document 43-2 Filed 04/04/12 Page 4 of 11 I I . 1 A. Mr. McCallum is in Custoafy. As a threshold matter, in order to obtain relief under 2255, a person must be "in custody under the sentence of a court established by an Act of Congress." 28 U.S.C. 2255(a). Mr. McCul1um meets the custody requirement, as he is serving the sentence imposed by this Court at -- CCM_Ra1eigh. 1 B. Mr. McCallum 's Motion to Vacate is Timely Under 28 US. C. 2255 28 U.S.C. 2255 establishes a one-year statute of limitations for motions tiled pursuant to I this statute. The one-year limitations period runs ii?om the latest of four possible triggering dates i described in 28 U.S.C. 2255(t)(1) through Section 2255(i)(4) provides that the statute of limitations runs one year from "the date on which the facts upporting the claim or claims presented I - could have been discovered through the exercise of due diligence. Under 225 "iacts" include court rulings and the legal consequences of known Johnson v. United States, 544 U.S. 295, 308 (2005). Where the defendant shows diligence "by prompt action . . . `as soon as he is in a position to realize that he has an interest in challenging the prior conviction," 28 U.S.C. 225 provides the applicable statute of limitations period. Id.; see also United States v. Gadsen, 332 F.3d 224 (4th Cir. 2003) (court applied one year limitation period under 225 holding that . 3 invalidation of prior conviction served as a "&ct supporting the claim"). . In Johnson, the Supreme Court explained that court cases can begin a petitioner's one-year I statute of limitations under 2255(i)(4). 544 U.S. at 298. Mr. Johnson wass tenced as a career offender in federal court based on two Georgia state convictions. The Supreme Court held that the clock began to run for Mr. Johnson to attack his sentence under 2255(i)(4) the day that a state . court vacated one of the Georgia convictions that qualified Mr. Johnson as a career ofender. Id. at - 302. The Supreme Court rejected the govemment' position that the "facts supporting the claim or 4 5 A - - Case 7:08-cr-00072-F Document 43-2 Filed 04/04/12 Page 5 of 11 claims presented" under 2255(t)(4) were limited to the actual underlying ofthe case and crime. Id. at 305 the Govemment's view, the statute of limitations may begin to run (and i . may even expire) before the 2255 claim and its necessary predicate even exist. . . . Hence, it is highly doubtful that in 2255 challenges to enhanced sentences Congress would have meant to start the period running under paragraph four on the discoverability date of facts that may have no I significance under federal law for years to come and that cannot by elves be the basis of a - ?2255 Johnson addressed a circuit split in which the Supreme Court adopted the rationale of the I Fourth Circuit's decision in Gadsen. Just like in Johnson, the petitioner in Gadsen received an enhanced federal sentence because of prior state convictions. 332 F.3d at 225. On the day that one of I his prior convictions was vacated, the Fourth Circuit explained that the 2255(t)(4) clock would begin to rum anew. Id at 228-29. The Fourth Circuit explicitly refused to accept a simple dictionary definition of "fact" when interpreting 2255(t)(4): "Section 2255(t)(4) is not limited to the vacatur of a state courtconviction; it potentially encompasses a wide range of subsequently-discovered facts. The use of a general categorical term ("racts') to refer to -the spectrum of speciic examples of I that category (the universe of potential factual predicates for a 2255 challenge) is an ordinary 1 technique in the drafting of statutes. Id at 227 n.2. The Fourth Circuit emphasized that if Mr. Gadsen had brought a challenge prior to his state-court vacatur, it would have been a Eivolous chall ge. Id. at 227-29. Mr. McCullum is in an identical predicamm t. Had he brought his challenge prior to the an decision in Simmons, his 2255 petition would have been summarily rejected. See, United States v. Hopkins, No. 5: 10-Cr--261-Fl-1, slip op. 2010 WL 4974901 (E.D.N.C. Nov. 30, 2010); I United States v. Etheridge, No. 5 lip op. 2010 4974559 (E.D.N.C. Nov. 30, I 6 . a Case 7:08-cr-00072-F Document 43-2 Filed 04/04/12 Page 6 of 11 i 1 2010); Walker v. United States, No. slip op. -201 1WL I 1337409 (E.D.N.C. Apr. 7, 2011) (all declining to adopted the rationale of Simmons and citing United States v. Harp, 406 F.3d 242 (4th Cir. 2005) and United States v. Jones, 195 .3d 205 (4th I Cir. 1999)). These cases make it clear that the supporting Mr. McCullum's claim became diseoverable for purposes of 2255 on the date the Fourth Circuit, sitting en banc, decided Simmons--August 17, 2011. On that date, the legal consequences of Mr. McCullum's prior North I Carolina "felony" convictions changed, providing him with an interest in challenging his prior conviction. I C. Equitable Tolling is Appropriate Should this Court Determine that 2255 Does Not Apply. I Ifthis Court is disinclined to apply sub ection as the trigger for the statute I of limitations in Mr. McCullum's case, he requests that this Court invoke the principle of equitable I . tolling to grant him relief United States v. Prescott, 221 F.3d 686, 688 (4th Cir. 2000) (holding that I the statute of limitations period in a 2255 motion is subject to equitable tolling). Equitable tolling I is part of the legal tradition in which courts of equity "have sought to 'relieve hardships which, hom I time to time, arise a hard and fast adherence' to more absolute legal rules, which, if applied, I threaten the 'evils of archaic rigidity."' Holland v. Florida, 130 S. Ct. 2549, 2563 (2010) citing I Hazel--Atlas Glass Co. ll Co., 322 U.S. 238, 248 (1944). An otherwise I time-barred petitioner is entitled to equitable tolling in "'those rare instances where--due to circumstances external to the pa.rty's own conduct--it would be unconscionable to enforce the 5 limitation against the party."' Hill v. Braxton, 277 .3d 701, 704 (4th Cir. 2002) Harris v. . Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). I Mr. McCullum is factually innocent ofthe crime of which he was convicted.. There is little . i 7 . Case 7:08-cr-00072-F Document 4312 Filed 04/04/12 Page 7 of 11 more unconscionable than barring someone who is innocent from relief simply because he failed to abide by a statutorily-prescribed time limit. This is particularly true when relief is sought as soon as practicable after the claim has- arisen. In order for equitable tolling to apply, a petitioner must demonstrate that 1) he has been pursuing his rights diligently, and 2) extraordinary circumstances stood in his way and prevented him Hom timely Eling. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010); United States v. Sosa, 364 I F.3d 507, 512 (4th Cir?. 2004) (citations omitted). Mr. McCullum pursued his rights diligently. The diligence required for equitable tolling is "reasonable diligence," not "maximum feasible diligence." Holland, 130 Ct. at 2565. Mr. McCullum exercised reasonable diligence by iiling this Motion as soon as practicable alter his claim for relief arose via the Fourth Circuit's decision in Simmons. Mr. McCullum a credible 2255 claim prior to the Fourth Circuit's decision in I Simmons, thus he could not have timely tiled unless he iiled a motion. The change in Fourth Circuit law was nothing short of extraordinary--Jones had been the precedent for over a decade wh the en banc Fourth Circuit decided Simmons. Furthermore, because the defendant 1 prevailed and the government chose not to appeal the Fourth Circuit's decision in Simmons, the I Supreme Court can never determine whether Simmons announced a substantive right such that I 2255(f)(3) would have the applicable statute of limitations period. Through this procedural anomaly, Mr. Mc(h1llum's claim for relief does not fall into any ofthe statute of limitations periods listed in 2255(t), despite the fact that he is actually innocent ofthe crime of which he was convicted. This is precisely the type of situation which equitable tolling exists to remedy--to enforce the limitations period against Mr. McCullum would be sanction the conviction and continued incarceration of an innocent man. It would be adherence to a legal rule that threatens the "evils of archaic rigidity." Holland, 130 S. Ct. at 2563 (citations omitted). Thus, if this Court 8 Case 7:08-cr-00072-F Document 43-2 Filed 04/04/12 Page 8 of 11 I . determines that Mr. McCullum's petition is untimely, he requests the Court apply equitable tolling to grant him relief. I D. Mr. McCallum 's Legal Innocence Overcornes Any Finding of Untirneliness. Actual innocence lifts the procedural bar caused by a failure tontimely Ele. Bousley v. United I . States, 523 U.S. 614, 622 (1998); See also United States v. Maybeck, 23 F.3d 888, 892-94 (4th Cir. 1994) (actual innocence exception can be applied in a 2255 to noncapital sentencing proceedings)? As the Fourth Circuit noted in Maybeck, "it is an imacceptable deviation iiom our fundamental system of justice to automatically prevent the assertion of actual innocence simply because a defendant has not observed proced1u?al avenues available to him." 23. .3d at 892. (I However, Wvhere the Governm has foregone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges." Id. at 624. As discussed above, Mr. McCu.llum is actually innocent of being a felon in possession of a Erearm. The government did not charge any counts other than the violation of 922(g)( 1). As the govemment did not forego any charges in the course of plea bargaining, Mr. McCu1lum"s actual I innocence lifts any procedural bar that would result if this Court finds that Mr. McCullum failed to I timely tile. . I 2The Fourth Circuit recently reiterated Maybeclfs holding in United States v. . PemMcCullum, 612 F.3d 270, 282 (4th Cir. 2010). I 9 . Case 7:08-cr-00072-F Document 43-2 Filed 04/04/12 Page 9 of 11 . i 1 coNc1.Us1oN Wherefore, based upon the foregoing, Mr. McCul1um respectfully requests this Court vacate his and vacate his conviction. Respectfully requested this day of April, 2012. I I THOMAS P. - Federal Public Defender . Devon L. Donahue DEVON L. DONAHUE Assistant Federal Public Defender I Attorney for Defendant Office of the Federal Public Defender I 225 Green Street, Suite 218 Fayetteville, North Carolina 28301 Telephone: 910-484-0179 Fan: 910-484-6496 E-mail: devon donahue@fd.org - VA Bar 36158 LR 57.1 Counsel Appointed . 1 . I 10 Case Document 43-2 Filed 04/04/12 Page 10 of 11 CERTIFICATE OF SER VICE I I HEREBY CERTIFY that a copy of the foregoing was served upon: FELICE CORPENING - Assistant United States Attomey Suite 800, Federal Building 310 New Bern Avenue I Raleigh, NC 27601-1461 1 by electronically Bling the foregoing with the Clerk of Court on April 4, 2012, using the system which will send notification of such filing to the above. This the 4* day of April, 2012. Devon L. Donahue 1 DEVON L. DONAHUE Assistant Federal Public Defender I Attorney for Defendant Oflice of the Federal Public Defender 225 Green Street, Suite 218 - Fayetteville, North Carolina 28301 Telephone: 910-484-0179 Fax: 910-484-6496 E-mail: devon donah@fd.org . VA Bar 36158 - LR 57.1 Cotmsel Appointed Case 7:08-cr-00072-F Document 43-2 Filed 04/04/12 Page 11 of 11 -