United States District Court, N.D. West Virginia, Martinsburg
ORDER LIFTING STAY AND DISMISSING 28 U.S.C. §
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
before the Court is the pro se Petitioner’s
Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255
[ECF No. 879], in which he moves the Court to vacate his
July 30, 2003 sentence in light of Johnson v. United
States, 135 S. Ct. 2551 (2015). On November 3, 2016,
this Court ordered the matter stayed pending the Supreme
Court’s decision in Beckles v. United States,
616 F. App’x 415 (11th Cir. 2015), cert.
granted, 136 S. Ct. 2510 (June 27, 2016). On March 6,
2017, the Supreme Court issued its opinion, finding the
holding in Johnson inapplicable to the residual
clause in § 4B1.2(a) of the United States Sentencing
Guidelines. See Beckles v. United States, No.
15-8544, 2017 WL 855781, at *3 (U.S. Mar. 6, 2017).
Accordingly, the Petitioner is not entitled to relief.
March 17, 2003, the Petitioner pled guilty to the
distribution of heroin in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C). Thereafter, on July 30, 2003, he
was sentenced to 188 months of imprisonment to be followed by
three years of supervised release. In calculating the
Petitioner’s sentence, the Court took into
consideration his criminal history, which includes a 2001
conviction for second degree assault in the state of
Maryland. The assault was considered a felony “crime of
violence” for the purpose of career offender
enhancement under the Guidelines.
Petitioner argues that, in light of Johnson, his
2001 Maryland conviction for second degree assault is no
longer considered a crime of violence under § 4B1.2(a),
and therefore he must be resentenced. However, because the
Supreme Court in Beckles refused to extend
Johnson relief to sentencing enhancements under the
Guidelines, the Petitioner does not receive the benefit of
the new one-year limitations period established by 28 U.S.C.
§ 2255(f)(3). Judgment was entered against the
Petitioner on August 5, 2003, and because he did not file a
direct appeal, it became final on August 19,
2003.Pursuant to § 2255(f)(1), the
Petitioner had one year from August 19, 2003, to file his
§ 2255 petition. Consequently, because the instant
petition was filed on March 24, 2016-more than eleven years past
the deadline-it is procedurally barred as untimely.
the Court ORDERS that the stay be
LIFTED, the Petitioner’s 28 U.S.C.
§ 2255 petition [ECF No. 879 in 3:02-CR-64-4; ECF No. 1
in 3:16-CV-33] be DISMISSED as untimely and
the above-styled civil matter be STRICKEN
from the active docket. The Court does not find that the
Petitioner has demonstrated “a substantial showing of
the denial of a constitutional right” and therefore
DENIES a certificate of appealability.
See 28 U.S.C. § 2253(c)(2).
Clerk is DIRECTED to enter a separate
judgment order in favor of the Respondent and transmit copies
of this Order to all counsel of record and the pro
 Unless otherwise indicated, all
citations to docket numbers reference entries in the
above-styled criminal matter.
 Section 2255(f) establishes a one-year
limitation period within which to file § 2255 petitions.
However, via subsection (f)(3), an inmate may restart this
one-year limitation period if he can demonstrate that he is
entitled to relief pursuant to a right that “has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.”
 A judgment is considered
“final” under § 2255(f)(1) when the time
expires for filing a petition for certiorari, certiorari is
denied or the Supreme Court affirms the appellate court.
See Clay v. United States, 537 U.S. 522, 527 (2003).
Here, because the Petitioner never filed a notice of appeal
with this Court, the judgment became final fourteen days
after entry, or the time within which to file a notice of
appeal expired. See Fed. R. App. P. 4(b);
Saunders v. United States, Case No. 13 C 8399, 2014
WL 201880, at *1 (N.D. Ill. Jan. 17, 2014).
 Although the Court received the
Petitioner’s § 2255 petition on March 28, 2016, it
is dated as being placed in the mail on March 24, 2016.
Accordingly, March 24, 2016, ...