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Pemberton v. United States

United States District Court, M.D. Alabama, Northern Division

September 3, 2014

BRADLEY H. PEMBERTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

RECOMMENDATION OF THE MAGISTRATE JUDGE

TERRY F. MOORER, Magistrate Judge.

This matter is before the court on a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence.

I. BACKGROUND

On June 29, 2011, a jury found the petitioner, Bradley H. Pemberton, ("Pemberton"), guilty of one count of wire fraud, in violation of 18 U.S.C. § 1343, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On September 28, 2011, the district court sentenced Pemberton to 48 months in prison. Pemberton appealed to the Eleventh Circuit, which affirmed his conviction and sentence. United States v. Pemberton, 479 Fed.App'x 264 (11th Cir. 2012).

On April 26, 2012, Pemberton filed a pro se pleading with this court titled as a "Motion to Correct Structural Errors and Vacate the Conviction" and presenting a claim that the wire-fraud and aggravated identity-theft statutes he was convicted of violating exceed Congress's authority to legislate in violation of the Tenth Amendment to the United States Constitution. Doc. No. 1.

On June 28, 2012, this court entered an order in compliance with Castro v. United States, 540 U.S. 375 (2003), advising Pemberton of its intention to recharacterize his pleading as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 4. As required by Castro, the order directed Pemberton to advise the court by July 30, 2012, that he intended to do one of the following:

1. Proceed before this court pursuant to 28 U.S.C. § 2255 on those claims presented in his motion;
2. Amend his motion to assert any additional claims pursuant to 28 U.S.C. § 2255 on which he wishes to challenge the convictions and sentence imposed upon him by this court; or
3. Withdraw his motion.

Doc. No. 4 at 3. The court cautioned Pemberton that if he failed to file a response in compliance with its order, his case would proceed under 28 U.S.C. § 2255, with only the claim in his original pleading being considered. Id.

On July 16, 2012, Pemberton moved for an extension of time to comply with the June 8, 2012, order. Doc. No. 5. The court granted Pemberton an extension to August 20, 2012. Doc. No. 6.

When the requisite time passed and Pemberton filed nothing in response to or in compliance with this court's order, this court found that the case would proceed under 28 U.S.C. § 2255 on the claim in his original pleading (the § 2255 motion). The court directed the United States to file a response addressing the claim in the § 2255 motion. Doc. No. 7.

In a timely response filed on August 26, 2012, the United States argues that Pemberton is not entitled to relief because the sole claim in his § 2255 motion - that the statutes he was convicted of violating exceed congressional authority in violation of the Tenth Amendment - is without merit. Doc. No. 8. This court entered an order allowing Pemberton to reply to the United States' response. Doc. No. 9. However, Pemberton did not avail himself of that opportunity

After consideration of Pemberton's § 2255 motion, the submissions supporting and opposing the motion, and the record, the court concludes that an evidentiary hearing is not required and that, under Rule 8(a), Rules Governing Section 2255 Proceedings in the ...


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