United States District Court, N.D. West Virginia
ORDER LIFTING STAY AND DISMISSING 28 U.S.C. §
M.GROH CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is the Government's Motion to Lift the
Stay and Dismiss the § 2255 Petition [ECF No.
159]. 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 v. United
States, 135 S.Ct. 2551 (2015), inapplicable to the
residual clause in § 4B1.2(a) of the United States
Sentencing Guidelines. See Beckles v. United States,
137 S.Ct. 886, 890 (2017). Based upon the decision in
Beckles, the Petitioner's 28 U.S.C. § 2255
petition must be dismissed.
November 13, 2006, the Petitioner entered a plea of guilty to
Count Four of the underlying superseding criminal indictment,
charging possession with intent to distribute cocaine base,
in violation of 21 U.S.C. § 841(a)(1). ECF No. 32.
Thereafter, on February 26, 2007, the Court sentenced the
Petitioner to 188 months of imprisonment to be followed by
four years of supervised release. ECF No. 37. In calculating
the Petitioner's sentence, the Court took into
consideration his criminal history, which includes a felony
conviction for escape from custody in the state of
Pennsylvania. The Petitioner's conviction for escape from
custody was considered a felony “crime of
violence” for the purpose of career offender
enhancement under the Guidelines.
currently-pending § 2255 petition, the Petitioner argues
that his conviction for escape from custody is no longer a
crime of violence under § 4B1.2(a), and therefore he is
entitled to resentencing. 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. §
was originally entered against the Petitioner on February 26,
2007. ECF No. 37. An amended judgment, denoting the identical
sentence, was entered on July 3, 2008. ECF No. 66. The
Petitioner filed a notice of appeal on July 17, 2008, and,
after consideration, the Fourth Circuit affirmed his
conviction. ECF No. 77. The Petitioner then filed a petition
for writ of certiorari with the Supreme Court, which was
denied on October 5, 2009. Supreme Court Remark, United
States v. Tyrone Yates, No. 08-4737 (4th Cir. Oct. 14,
2009), ECF No. 38. The Petitioner had one year from the
Supreme Court's denial of certiorari to file his §
2255 petition. Because the instant petition was filed on
June 24, 2016-more than five years and eight months past the
deadline prescribed by § 2255(f)- it is procedurally
barred as untimely.
consideration, the Court ORDERS that the Government's
Motion to Lift the Stay and Dismiss the § 2255 Petition
[ECF No. 159 in 3:06-CR-20] be GRANTED. The Petitioner's
28 U.S.C. § 2255 petition [ECF No. 145 in 3:06-CR-20;
ECF No. 1 in 3:16-CV-98] is DISMISSED as untimely. The
Government's Motion to Dismiss [ECF No. 152 in
3:06-CR-20] is DENIED AS MOOT. Because the Petitioner has not
demonstrated “a substantial showing of the denial of a
constitutional right, ” the Court DENIES a certificate
of appealability. See 28 U.S.C. § 2253(c)(2).
Clerk is DIRECTED to strike the above-styled matters from the
Court's active docket, enter a separate judgment order in
favor of the Respondent and transmit copies of this Order to
all counsel of record and the pro se Petitioner.
 Unless otherwise indicated, all
citations to docket numbers reference entries in the
above-styled criminal matter.
 The Court notes that an amended
judgment was entered on July 3, 2008 [ECF No. 66], based upon
a consent motion filed by the parties [ECF No. 59]. The
purpose of the amended judgment was to reinstate the ten-day
window within which the Petitioner could file a notice of
appeal. The amended judgment imposes the same sentence as the
 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. ...