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Smith v. Gomez

United States District Court, N.D. West Virginia, Wheeling

April 30, 2019

ROGER LEE SMITH, Petitioner,
v.
CHRISTOPHER GOMEZ, Warden Respondent.

          ORDER DISMISSING CASE

          JOHN PRESTON BAILEY, DISTRICT JUDGE.

         Pending before this Court is the Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1]. This case is before the Court upon preliminary review.

         In his Petition, the petitioner contends that his Federal sentence was impermissibly made to run consecutively to his state sentence. The facts underlying the argument are as follows:

         1. In June, 1991, the petitioner pled guilty in the Circuit Court of Barbour County, West Virginia, to one count of armed robbery;

         2. By Order entered November 27, 1992, the Circuit Court sentenced the petitioner to 100 years in the West Virginia State Penitentiary to be “served concurrently with any and all sentences herefore imposed upon the defendant in regard to charges arising from acts occurring in Doddridge County, West Virginia in June or July of 1990 in regard to two bank robberies in Doddridge County, West Virginia;

         3. On February 21, 1992, the petitioner entered a plea of guilty in the United States District Court for the Northern District of West Virginia sitting in Elkins to two counts charging a violation of 18 U.S.C. § 924(c)(1);

         4. On July 24, 1992, the defendant was sentenced on his Federal charges to 5 years on Count One and Twenty Years on Count Two to run consecutively. In turn, the entire sentence was ordered to run consecutively to the 100 year sentence imposed by the State of West Virginia;

         5. On November 12, 1998, the petitioner filed an action under 28 U.S.C. § 2254, which was dismissed on February 24, 2004;

         6. The defendant was paroled by the State of West Virginia and came into Federal custody on September 13, 2017.

         The petitioner contends that (1) his Federal sentence should be made concurrent with his state sentence, in which case he would have completed service of both sentences, and (2) the stacked charges under § 924(c) should be removed “per the First Step Act.”

         In 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted, establishing a one year limitation period within which to file any federal habeas corpus petition. The AEDPA applies to those cases filed after April 24, 1996, the effective date of the AEDPA. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir.), cert. denied 523 U.S. 371 (1998).

         The one year period of limitation runs from the latest of four dates:

(1) the date on which the judgment of conviction becomes final;
(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 ...

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