Walker v. United States, No. 7:07-CR-00076-1-BR, 2011 WL 1337409 (E.D.N.C. Apr. 7, 2011):
Petitioner filed a 2255 motion seeking to have his sentence vacated, set aside, or corrected. Petitioner claims that his prior state convictions for possession with intent to manufacture, sell, and deliver a controlled substance and for obtaining property by false pretenses are not predicate offenses for the career offender sentencing guideline enhancement. Petitioner's argument is based on the Supreme Court's decisions in Rodriques (U.S. 2008) and Carachuri-Rosendo (U.S. 2010), which Petitioner suggests have effectively overruled Jones (4th Cir. 1999) and Harp (4th Cir. 2005). Recently, in Simmons (4th Cir. Feb. 16, 2011), the Fourth Circuit confirmed the validity of Harp in the wake of Carachuri-Rosendo. However, on March 18, 2011, the Fourth Circuit vacated that decision and granted rehearing en banc.
Even if Petitioner is corrected about Carachuri-Rosendo, he still must overcome the hurdle of showing that the rule announced in that case applies retroactively to cases on collateral review. The E.D.N.C. located only one case which has addressed the retroactivity of Carachuri-Rosendo, and there, acknowledging the dearth of case law, the W.D.N.C. declined to apply the rule retroactively. See United States v. Powell, Nos. 5:10cv137–V–5, 5:03cr37–13, 2011 WL 32519, *4 (W.D.N.C. Jan. 4, 2011). Because of the lack of direction from the Supreme Court and all Courts of Appeal, the E.D.N.C. granted a COA regarding whether Carachuri-Rosendo announced a new rule of law that applies retroactively to cases on collateral review.
[The Powell Court also granted a COA on this issue.]
[3/24/2012 Update: The Fourth Circuit issued its en banc opinion in the Simmons case on August 17, 2011.]