MEMORANDUM AND ORDER

LEON JORDAN, District Judge.

Now pending is a motion to vacate or correct sentence under 28 U.S.C. § 2255, asking that the sentence of William Lumpkin ("Petitioner") be reduced for either of two reasons: under the Fair Sentencing Act, or by virtue of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). [Doc. 509]

What is odd about the motion is that it was filed by Petitioner's then-attorney, Nikki Pierce of Federal Defender Services, who recited in the motion itself that she could not ethically seek a reduction of Petitioner's sentence under either the Fair Sentencing Act or Simmons. She subsequently withdrew from the case and Petitioner is now pro se.

The Court understands why counsel filed a formal motion on Petitioner's behalf in view of the letter petitioner wrote the Court on November 7, 20111 in which he asks if perhaps he was entitled to a reduction in his sentence based on the Fair Sentencing Act. In his letter, however, Petitioner never mentioned Simmons; Simmons was raised only by counsel in the formal motion she ultimately filed and, as already noted, she did not believe that she, as an officer of the Court, could pursue a Simmons argument. Regardless, it is now raised, and the Court will deal with it.2

FAIR SENTENCING ACT

This need not be addressed on the merits. Petitioner was released from custody in September, 2013.3 The issue is MOOT.

SIMMONS ISSUE

This issue also is MOOT in light of Petitioner's release from custody. But it bears noting that Simmons was precipitated by the Supreme Court's ruling in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). Moreover, Carachuri-Rosendo was anticipated by the Sixth Circuit in United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008). Even if it be assumed that both Carachuri-Rosendo and Pruitt have retroactive application, petitioner's motion was not filed until August 16, 2012, two years after Carachuri-Rosendo, and four years after Pruitt. As a result, petitioner's motion is barred by 28 USC § 2255(f)(1).

Lastly, and more importantly, Carachuri-Rosendo only describes when an underlying state conviction constitutes an aggravated felony for federal sentence enhancement purposes. Petitioner herein was subject to a mandatory term of life imprisonment because he committed the offense for which he was convicted in this court after having at least two prior felony drug offenses.4 Petitioner had three prior convictions in North Carolina for which he was sentenced to more than one year of imprisonment on each. Carachuri-Rosendo has no application to statutory minimum mandatory sentences.

For each of the reasons discussed in this memorandum, Petitioner's motion is not well-taken and therefore should be DENIED. Additionally, a certificate of appealability should issue only if the Petitioner has demonstrated a "substantial showing of a denial of a constitutional right," 28 U.S.C. § 2255(c)(2). Having considered Petitioner's claim under the standard of Slack v. Daniel, 529 U.S. 473 (2000), the Court FINDS that reasonable jurists that could not find that the denial of his motion was debatable or wrong. Therefore, a certificate of appealability is also DENIED. A judgment in accordance with this Memorandum and Order will be filed.

SO ORDERED.