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Wilson v. United States

United States District Court, E.D. Virginia, Norfolk Division

February 10, 2017

UNITED STATES OF AMERICA, Respondent. Civil Action No. 2:17cv75


          Raymond A. Jackson United Males District Judge.

         Michael Maurice Wilson ("Petitioner") has submitted a Petition to proceed in forma pauperis, and a Motion pursuant to 28 United States Code, Section 2241 (§ 2241). For the reasons set forth herein, the Court CONSTRUES Petitioner's § 2241 Motion as a Motion filed pursuant to Title 28, United States Code, Section 2255 (§ 2255). Having thoroughly reviewed Petitioner's petition and § 2255 Motion, the Court finds that this matter is ripe for judicial determination, and does not need to hold a hearing. For the foregoing reasons, Petitioner's petition and § 2255 Motion are DENIED.


         On February 6, 2013, a Grand Jury in the Eastern District of Virginia indicted Petitioner on four counts. ECF No. 210 (No. 2:1 lcrl80). On October 4, 2013, Petitioner pled guilty to Count Thirty-Nine of the Indictment. ECF No. 306 (No. 2:1 lcrl80). Count Thirty-Nine charged Petitioner with Witness Tampering in violation of 18 U.S.C. § 1512(a)(2)(A). Id. On March 24, 2014, Petitioner was sentenced to imprisonment for forty months to be served consecutive to the term imposed in case number 2:07crl29. ECF Nos. 395 & 396 (No. 2:llcrl80). The Court further directed that Petitioner's term of imprisonment would be followed by a three-year term of supervised release to run concurrently with the sentence imposed in case number 2:07crl29. Id.

         On October 30, 2015, Petitioner filed an Application to Proceed in forma pauperis, as well as a Motion pursuant to 28 U.S.C. § 2241. ECF No. 1 & 2 (No. 2:17cv75). To date, Petitioner has not filed an appeal with the United States Court of Appeals for the Fourth Circuit.


         When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 2255 motion. United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs post-conviction relief for federal prisoners. It provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).

         When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b) (2008). Whether a hearing is mandatory for a § 2255 Motion and whether petitioner's presence is required at the hearing is within the district court's sound discretion and is reviewed for abuse of discretion. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970) (citing Machibroda v. United States, 368 U.S. 487 (1962)).


         Petitioner petitions the Court for permission to proceed in forma pauperis, and moves the Court to "correct" or "vacate" his sentence pursuant to § 2241. ECF Nos. 1& 2 (No. 2:17cv75). The Court will first address Petitioner's motion pursuant to § 2241 because the Court's determination on Petitioner's motion will determine whether Petitioner's petition to proceed in forma pauperis should be granted.

         Petitioner argues that because he was sentenced for witness tampering, he should not have received an enhancement for making a "credible threat" to use violence. Id. Petitioner asserts that the foregoing constitutes "double jeopardy," and that the sentencing Court "was wrong when it enhanced [Petitioner's] sentence by applying a 2 level enhancement for threat of violence," which he argues is equivalent to tampering. Id. ...

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