United States District Court, E.D. Virginia
March 24, 2015
UNITED STATES OF AMERICA,
DOUGLAS R. OLGERS, Petitioner.
(DENYING 28 U.S.C. § 2255 MOTION)
HENRY E. HUDSON, District Judge.
Douglas R. Olgers, a federal inmate proceeding pro se, filed this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("2255 Motion, " ECF No. 34). The Government requests that the Court deny the § 2255 Motion on the grounds that, inter alia, the statute of limitations bars the § 2255 Motion. Despite receiving Roseboro notice,  Olgers has not responded. For the reasons set forth below, the § 2255 Motion will be denied as barred by the statute of limitations.
Olgers pled guilty pursuant to a written plea agreement to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Plea Agreement 1, ECF No. 19.) Because Olgers had been previously convicted of two prior felonies, under United States Sentencing Guidelines ("USSG") § 2K2.1(a)(2), his base offense level was twenty-four (24). (Presentence Report ("PSR") Worksheet A at 1.) On July 21, 2009, the Court entered final judgment and sentenced Olgers to ninety-six months of imprisonment. (J. 2, ECF No. 29.) Olgers filed no appeal.
On August 6, 2012, Olgers executed his § 2255 Motion and presumably placed it in the prison mail system. (§ 2255 Mot. 7.) In his § 2255 Motion, Olgers asserts that in light of United States v. Simmons, 649 F.3d. 237 (4th Cir. 2010),  his "two prior felony convictions used to aggravate his base offense level no longer qualify as federal felonies" thus, "his base offense level... was incorrectly calculated." (Mem. Supp. § 2255 Mot. 1.)
Olgers's challenge to the calculation of his sentence under the guidelines fails to state a cognizable claim for § 2255 relief. See United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999) (explaining that "barring extraordinary circumstances" error in calculation of Sentencing Guidelines not cognizable on habeas); see also United States v. Goines, 357 F.3d 469, 477 (4th Cir. 2004) (citations omitted) ("[G]uidelines claims ordinarily are not cognizable in § 2255 proceedings."); Milan v. United States, ___ F.Supp. 3d ___, No. 1:09cr228, 2014 WL 5454394, at *5 (E.D. Va. Oct. 24, 2014) (challenge to criminal history category not cognizable in § 2255); el Hawkins v. United States, 706 F.3d 820, 823-24 (7th Cir. 2013), cert. denied, 134 S.Ct. 1280 (2014); Sun Bear v. United States, 644 F.3d 700, 705-06 (8th Cir. 2011) (en banc) (challenges to career offender status under guidelines not cognizable in § 2255). Olgers fails to demonstrate any extraordinary circumstances that would allow the Court to reach the validity of the guidelines sentence at this late juncture.
Accordingly, Olgers's § 2255 Motion (ECF No. 34) will be denied and the action will be dismissed. A certificate of appealability will be denied.
An appropriate Order will accompany this Memorandum Opinion.