United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.
September 3, 2019, pro se petitioner filed a Motion
to Vacate, Set Aside or Correct Sentence Pursuant to 28
U.S.C. § 2255. ECF No. 52. On September 5, 2019, the
undersigned entered an Order [ECF No. 56] advising Petitioner
that his § 2255 Motion would be dismissed as untimely
within fourteen days unless he could demonstrate that the
statute of limitations could be equitably tolled. Petitioner
has failed to respond to this Order.
Conviction and Sentence
6, 2016, Petitioner was indicted in a one count indictment
charging him with failure to register as a sex offender, in
violation of Title 18, United States Code, Section 2250(a).
ECF No. 1. On October 11, 2016, pursuant to a written plea
agreement, Petitioner plead guilty to this charge. ECF No.
January 9, 2017, the Court sentenced Petitioner to a term of
36 months of imprisonment followed by a term of supervised
release for life. ECF No. 47. The Court entered this judgment
on January 11, 2017. ECF No. 48.
did not pursue a direct appeal. ECF No. 52 at 1.
Instant § 2255 Motion to Vacate
Motion sets forth one issue. Petitioner contends that in
United States v. Haymond, 139 S.Ct. 2369 (2019), the
Supreme Court held that 18 U.S.C. § 3583(k) is
unconstitutional. ECF No. 52 at 4. Petitioner further asserts
that he was sentenced under 18 U.S.C. § 3583(k) and now,
due to the holding in Haymond, the Court can
resentence him to far less time.
undersigned must first review this motion to decide if it is