United States District Court, W.D. Virginia, Abingdon Division
April 8, 2014
UNITED STATES OF AMERICA
JAMES McCLOUD, Defendant.
Mary Kathleen Carnell, Special Assistant United States Attorney, Abingdon, Virginia, for United States; James McCloud, Pro Se Defendant.
JAMES P. JONES, District Judge.
Defendant James McCloud, proceeding pro se, filed the present Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The United States has moved to dismiss the motion as untimely and McCloud has responded. I find that the motion is barred by the applicable statute of limitations.
James McCloud pleaded guilty in this court to Count One of an Indictment that charged him with possession of certain firearms after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (Count One § 1), as well as possession of the same firearms at the same time after conviction of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9) (Count One § 2). Prior to sentencing, an issue arose as to whether McCloud had the necessary three predicate convictions in order to be eligible for a mandatory sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The three prior convictions were two 1998 convictions in this court, one for possession of an unregistered machine gun and one for possession of a sawed-off shotgun, and a 2000 conviction in the Circuit Court of Tazewell County, Virginia, for malicious wounding. McCloud argued that the malicious wounding conviction did not qualify as an ACCA predicate because he had received a diversionary sentence after a guilty plea. I ruled to the contrary, United States v. McCloud, 158 F.Supp.2d 744, 748 (W.D. Va. 2001), and on October 11, 2001, I sentenced him under the ACCA to the statutory mandatory minimum 15 years of imprisonment. McCloud did not appeal.
McCloud signed and dated the present § 2255 motion on February 14, 2012. He alleges that his conviction under 18 U.S.C. § 922(g)(9) and his sentence under the ACCA are invalid. The government has moved to dismiss McCloud's motion as untimely under 28 U.S.C. § 2255(f). McCloud now asserts that his claims are timely in light of the recent case of Descamps v. United States, 133 S.Ct. 2276 (2013), upon which authority he contends he is entitled to relief.
A person convicted of a federal offense has one year to file a § 2255 motion, starting from the latest of the following 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 making a motion by such governmental action;
(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). If the defendant does not appeal, his conviction becomes final when his opportunity to appeal expires. Clay v. United States, 537 U.S. 522, 524-25, 532 (2003).
Clearly, McCloud filed his § 2255 motion outside the limitation period defined under § 2255(f)(1). Because McCloud did not appeal the October 11, 2001, judgment, his conviction became final on October 23, 2001, when his opportunity to appeal expired. McCloud then had one year - until October 23, 2002 - in which to file a timely § 2255 motion. Because McCloud filed his § 2255 motion, at the earliest, on February 14, 2012,  his claims are untimely under § 2255(f)(1). Moreover, McCloud has not alleged facts upon which his § 2255 motion could be deemed timely under § 2255(f)(2), based on the removal of a governmental impediment, or § 2255(f)(4), based on newly discovered facts.
In Descamps, the Supreme Court held that in determining whether a predicate crime is a violent felony under the ACCA, a sentencing court may not use the so-called modified categorical approach when the crime in question has a single, indivisible set of elements. 133 S.Ct. at 2282. Descamps has not been made retroactive to apply to cases on collateral review and thus does not fall within the exception contained in 28 U.S.C. § 2255(f)(3). See, e.g., United States v. Davis, No. 13 C 50360, 2014 WL 1047760, at *5 (N.D. Ill. Mar. 18, 2014). While it is apparently the current policy of the Department of Justice to refrain from asserting that Descamps is not retroactive, see Parker v. Walton, No. 13-cv-1110-DRH-CJP, 2014 WL 1242401, at *2 (S.D. Ill. Mar. 26, 2014), there is no valid argument made here that a modified categorical approach was necessary in order to determine that McCloud's convictions were valid ACCA predicates.
For the forgoing reasons, McCloud's motion will be denied as barred by the statute of limitations. A separate Order will be entered herewith.