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United States v. Olgers

United States District Court, E.D. Virginia

March 24, 2015

UNITED STATES OF AMERICA,
v.
DOUGLAS R. OLGERS, Petitioner.

MEMORANDUM OPINION (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, [1] 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).[2] (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), [3] 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.[4]

Accordingly, Olgers's § 2255 Motion (ECF No. 34) will be denied and the action will be dismissed. A certificate of appealability will be denied.[5]

An appropriate Order will accompany this Memorandum Opinion.


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