United States District Court, N.D. West Virginia, Wheeling
ORDER DENYING S 2255 MOTION
PRESTON BAILEY, STATES DISTRICT JUDGE
day, the above-styled matter came before this Court for
consideration of the pro se defendant's Letter
construed as a Motion to Vacate under 28 U.S.C. § 2255
[Doc. 81 and defendant's Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody on the court-approved form [Doc.
88]. Therein, the defendant asks that this Court re-sentence
him in the Guideline range of 70 to 87 months. In support,
the defendant argues that: (1) he was improperly sentenced as
a career offender on the basis of two prior felony drug
convictions; (2) he only has one proper predicate felony drug
offense because his two drug charges were consolidated for
sentencing; and (3) because, while he has two intervening
arrests, he only has one sentence, he did not have the
necessary predicate offenses for applications of the Career
Offender provision and must be re-sentenced [Doc. 81]. He
also argues ineffective assistance of counsel based on his
counsel not contesting the career offender enhancement [Doc.
88 at 6].
are the same arguments defendant has made in other motions
already ruled on by this Court [Docs. 93, 96]. This Court has
already found that he was properly sentenced as a career
offender and that his prior sentences did not serve as a
single consolidated sentence under the law [Docs. 93, 96 at
1]. In addition to the reasoning already provided twice by
this Court, defendant's § 2255 motion is also
28 U.S.C. § 2255(f), a one year limitation applies to
motions brought under that section. This one year period runs
from the latest of the following:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f)<1-4).
when a prisoner does not file a notice of appeal, the
judgment becomes final when the time for seeking such review
expires. Clay v. United States, 537
U.S. 522 (2003). Defendant's judgment
order was entered on July 11, 2014 [Doc. 47]. Defendant did
not appeal, therefore his conviction became final for the
purposes of § 2255(f)(1) on July 25, 2014, fourteen days
after the judgment of conviction. See
Clay, 537 U.S. at 525. Defendant had
one year, or until July 25, 2015, to file a timely §
2255 Motion. However, he did not file this Motion until
January 16, 2018, over two years after the one-year statute
of limitations had expired. Therefore, the Motion is
the defendant argues that it was his counsel's fault that
no appeal was ever filed. Therefore, there was no prevention
of filing based on any governmental action.
defendant claims two Fourth Circuit cases-United States
v. Davis, 720 F.3d 215 (4th Cir. 2013) and United
States v. Carthorne, 878 F.3d 458 (4th Cir.
2017)-provide support for his argument that he should never
have been sentenced as a career offender [Doc. 81].
Obviously, neither case is a Supreme Court case and neither
are applicable to the defendant's case even if they were.
Davis has already been analyzed and ruled that it is
inapplicable to the instant case [Doc. 93 at 3],
Carthorne is also not applicable to the instant case
because Carthorne dealt with whether a prior offense
used for classifying a defendant as a career offender
categorically involves the use of physical force. See
Carthorne, 878 F.3d at 468. However, this case is not
applicable to the defendant's case because the defendant
was deemed a career offender for previous drug convictions,
not crimes of violence. Additionally, in a later letter
addressed to this Court, defendant asks if two recent Supreme
Court cases-Hughes v. U.S., 138 S.Ct. 1765 (2018)
and /Coons v. U.S., 138 S.Ct. 1783 (2018)-are
applicable to his case [Civil Doc. 6]. Neither case is
applicable here because the issues in those cases were
whether previously imposed sentences were "based
on" a sentencing guideline range. See Hughes,
138 S.Ct. at 1778 (holding that a sentence imposed pursuant
to a binding plea agreement was "based on" the
Sentencing Guidelines as long as that range was part of the
sentencing judge's framework in accepting the plea
agreement); Koons 138 S.Ct. at 1790 (holding that a
downward departure of a mandatory minimum sentence because of
substantial assistance was not "based on"
Sentencing Guidelines ranges). Defendant contends that he was
improperly deemed a career offender, which is not the issue
in either of these two Supreme Court cases.
there are no new arguments that could not have been brought
up within the one year limitation provided by § 2255.
The defense could have challenged the career offender
enhancement at sentencing. Additionally, the ineffective
assistance of counsel claim could have been brought within a
year of his conviction.
the pro se defendant's Letter construed as a
Motion to Vacate under 28 U.S.C. § 2255 [Crim.
Doc. 81; Civil Doc. 1] and defendant's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody [Doc.
88] are DENIED and
DISMISSED as untimely. The Clerk is ...