United States District Court, D. North Dakota
ORDER DISMISSING MOTION TO VACATE UNDER 28 U.S.C.
§ 2255, DENYING MOTION TO APPOINT COUNSEL, AND DENYING
MOTION FOR HEARING
D. WELTE, CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court is Defendant Charles William Carlton's pro se
“Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2241” filed on September 30, 2019. See
Doc. No. 313. On October 3, 2019, the Court ordered the Clerk
of Court to reclassify the motion as a motion to vacate under
28 U.S.C. § 2255. Order to Reclassify Motion, Carlton v.
United States, No. 3:19-cv-216 (D.N.D. Oct. 3, 2019), ECF No.
4. Carlton also moves for the appointment of counsel and for
an evidentiary hearing. See Doc. No. 316. For the
reasons set forth below, the motion to vacate is dismissed,
and the motions for counsel and a hearing are denied as moot.
the Court is not addressing the merits of Carlton's
motion, only a brief synopsis of the facts of the underlying
offense is necessary. On March 10, 2014, Carlton pled guilty
to (1) Conspiracy to Possess with Intent to Distribute and
Distribute Controlled Substances and Controlled Substance
Analogues Resulting in Serious Bodily Injury and Death (Count
1 of the Indictment); (2) Conspiracy to Cause the
Introduction of a Misbranded Drug into Interstate Commerce
(Count 3 of the Indictment); and (3) Money Laundering
Conspiracy to Conceal and Disguise the Nature, Location,
Ownership, and Control of Proceeds of Specified Unlawful
Activity (Count 1 of the Information). Doc. No. 178. Carlton
had “used an internet based business named Motion
Resources LLC, . . . located in Houston, Texas, to facilitate
the unlawful importation of controlled substance analogues
from various countries, ” which he and the company
would “then unlawfully distribute all over the United
States.” Doc. No. 175, p. 14. According to the factual
basis in the plea agreement, the distribution of
N-(2-methoxybenzyl)-4-iodo-2, 5-dimethoxyphenethylamine, also
known as 2C-I-NBOMe or 25I-NBOMe, resulted in the following
deaths and serious bodily injury:
(1) The death of C.A.B. in Grand Forks, North Dakota, on June
(2) Serious bodily injury to C.L.J. in Grand Forks on June
11, 2012; and
(3) The death of E.R.S. in East Grand Forks, Minnesota, on
June 13, 2012.
Doc. No. 175, p. 7. On August 28, 2014, Carlton was sentenced
to concurrent terms of 246 months' imprisonment on Count
1 of the Indictment, 36 months' imprisonment on Count 3
of the Indictment, and 240 months' imprisonment on Count
1 of the Information. Doc. No. 241. Carlton did not appeal
within fourteen days of the entry of judgment (September 3,
important to the Court's analysis in this order is what
has transpired since the judgment became final, as this is
not the first § 2255 motion that Carlton has filed. On
August 17, 2015, Carlton filed a § 2255 motion raising
several claims of ineffective assistance of counsel. Doc. No.
257. The United States filed a 61-page response in opposition
on April 18, 2016. Doc. No. 288. On August 30, 2016, Carlton
moved to withdraw his § 2255 motion pursuant to Rule
41(a)(2) of the Federal Rules of Civil Procedure. Doc. No.
290. The motion stated, “Counsel and Mr. Carlton have
had numerous discussions regarding his Motion to Vacate and
his decision to withdraw. Mr. Carlton is aware of the
consequences of withdrawing his motion and the time limits
for filing motions pursuant to § 2255.”
attached affidavit, Carlton stated in relevant part:
2. Mr. Vickers and I have had numerous conversations
regarding my rights and the facts regarding my § 2255
claim and I am satisfied with Mr. Vickers'
3. Although sometimes difficult to set up communication, over
the past year Mr. Vickers and I have reviewed the applicable
law, the facts of the case, and I have reviewed a brief Mr.
Vickers drafted in Reply to the Government's Response to
my § 2255 motion.
4. I have discussed my right to continue forward in this
process and the consequences of withdrawing my motion.
5. After much consideration and upon the advice of my counsel
Mr. Vickers I am requesting the court withdraw my Motion to
Vacate, Set Aside, or ...