United States District Court, W.D. Virginia, Harrisonburg Division
REPORT AND RECOMMENDATION
JOEL C. HOPPE, Magistrate Judge.
Moises Morejon, a federal inmate proceeding pro se, filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("Petition"). ECF No. 95. The Government filed a motion to dismiss to which Morejon has responded. The matter is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 107. Having considered the parties' filings, the criminal case record, and the applicable law, I find that Morejon's Petition is untimely. I also find that Morejon knowingly and voluntarily waived his right to collaterally attack his sentence when he pled guilty with a written agreement. Accordingly, I recommend that the presiding District Judge grant the motion to dismiss.
I. Standard of Review
A prisoner claiming the right to be released from a federal sentence must show that the district court did not have jurisdiction to impose the sentence; the sentence was imposed in violation of the Constitution or laws of the United States; the sentence exceeded the maximum penalty allowed by law; or the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a)-(b); Michel v. United States, Nos. 5:06cr41, 5:10cv80281, 2011 WL 767389, at *1 (W.D. Va. Feb. 25, 2011) (Conrad, C.J.). The prisoner ultimately must prove his grounds for relief by a preponderance of the evidence. United States v. White, 366 F.3d 291, 297 (4th Cir. 2004).
On the Government's motion to dismiss, however, the court determines only whether "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); accord White, 366 F.3d at 296-97. Summary dismissal is not appropriate when the prisoner alleges facts that, if true, would entitle him to relief on his particular claim. See White, 366 F.3d at 297. The court may not reject the prisoner's factual allegations unless they are "palpably incredible" or "patently frivolous or false" when viewed against the whole record. Id. The court does not weigh evidence, consider credibility, or resolve disputed issues-it decides only whether the prisoner's filings state a claim for relief under section 2255. See United States v. Stokes, 112 F.Appx. 905, 906 (4th Cir. 2004) (citing Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970)).
A grand jury sitting in the Western District of Virginia indicted Morejon and a codefendant on August 20, 2009. See Indictment, ECF No. 13. Morejon was charged in three of the four counts: (1) knowingly and intentionally conspiring to distribute at least 500 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), and 841(b)(1)(A), 846; (2) knowingly and intentionally possessing with intent to distribute at least 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); and (3) knowingly possessing and brandishing a firearm in furtherance of the federal drug-trafficking crime charged in Count Two, in violation of 18 U.S.C. § 924(c). See id. at 1-2. The Court appointed counsel to represent Morejon on August 24, 2009. The same day, the Government filed an Information under 21 U.S.C. § 851 asserting that the State of Florida had convicted Morejon of two "felony drug offenses" in 1997. See ECF No. 19.
Morejon and the Government entered into a written plea agreement. See Plea Agmt. 1, ECF No. 49. Morejon would plead guilty to the drug conspiracy charged in Count One and to knowingly possessing a firearm in furtherance of a federal drug-trafficking crime, a lesser-included offense of Count Three. See id. In exchange, the Government would move at sentencing to dismiss Count Two. See id. at 2. The Government also agreed that, if Morejon complied with his obligations under the agreement, it would drop one of his prior drug convictions and "agree not to seek additional enhancements of [his] penalty range." Id. at 2-3.
On October 21, 2009, Morejon appeared with counsel for a change-of-plea hearing before United States District Judge Samuel G. Wilson. See generally Plea Hr'g Tr. 1-27, ECF No. 86. Morejon said that he intended to plead guilty to conspiring to distribute at least 500 grams of a mixture or substance containing a detectable amount of methamphetamine, and to knowingly possessing a firearm in furtherance of a federal drug-trafficking crime. See id. at 15-21, 25-26. Judge Wilson asked Morejon if he understood the terms of his written plea agreement, the elements of the offenses charged in Count One and Count Three, the mandatory minimum and maximum penalties if convicted, and all of the rights he was giving up by pleading under the agreement. See generally id. at 13-25. Morejon testified that he understood the Court's admonishments and wanted to plead guilty. See generally id. at 13-27. Judge Wilson accepted Morejon's pleas of guilty to the drug conspiracy charged in Count One and to the lesser-included firearm offense charged in Count Three. Id. at 26-27.
On December 28, 2009, the Government filed an amended section 851 Information listing only Morejon's prior conviction for selling cocaine. ECF No. 60. On January 5, 2010, Judge Wilson sentenced Morejon to twenty-five years in prison, which was the statutory minimum. See Judgment 1, ECF No. 62; Plea Hr'g Tr. 21 ("The Court: So under your plea agreement, you understand, essentially that unless a substantial assistance motion is filed, that you will be facing no less than 25 years incarceration?"). Count Two was dismissed per the agreement.
The Court entered the judgment of conviction on January 6, 2010, and Morejon timely filed a pro se notice of appeal. ECF No. 65 (Jan. 12, 2010). The United States Court of Appeals for the Fourth Circuit dismissed the appeal on July 2, 2010. See ECF Nos. 89, 90. The judgment became final ninety days later, on September 30, 2010. See United States v. Scott, No. 2:04cr9, 2010 WL 1490361, at *6 (W.D. Va. Apr. 14, 2010) (when a defendant appeals his conviction but the appeal is dismissed, the judgment becomes final when his "opportunity to pursue a writ of certiorari expire[s], ninety days after" dismissal).
Morejon filed his Petition on April 22, 2014. He "challeng[es] the length of his confinement in light of the" Supreme Court's decisions in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (June 17, 2013), and Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (June 20, 2013). Pet. 3, ECF No. 95. The Government moved to dismiss the Petition on May 29, 2014, ECF No. 99, and Morejon responded on July 14, 2014, ECF No. 106. The motion to dismiss is ripe for review and can be resolved on the existing record. See 28 U.S.C. § 2255(b) (the district court may dismiss a 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief"); United States v. Ray, 547 F.Appx. 343, 345 (4th Cir. 2013) (per curiam) (noting that an evidentiary hearing is required if the movant presents a "colorable" claim for relief "showing disputed facts beyond the record or when a credibility determination is necessary in order to resolve the issue" (citing United States v. Witherspoon, 231 F.3d 923, 926-27 (4th Cir. 2000)).
Morejon challenges his twenty-year prison sentence for conspiring to distribute at least 500 grams of a mixture or substance containing methamphetamine, the offense charged in Count One. He argues that this sentence is unlawful because the Court, as opposed to a jury, determined the drug weight that triggered a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A) (2006). See Pet. 7-9 (citing Alleyne, 133 S.Ct. 2151). He also argues that his state-court conviction for selling cocaine "was an illegal/invalid predicate" that "improperly enhanced" his mandatory minimum sentence under 21 U.S.C. §§ 841 and 851. See id. at 10-13 (citing Descamps, 133 S.Ct. 2276). The Government responds that Morejon's ...