United States District Court, E.D. Virginia, Richmond Division
JAMES R. SPENCER, Senior District Judge.
THIS MATTER is before the Court on pro se Petitioner Randy D. Dyson's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") (ECF No. 101). For the reasons set forth below, the § 2255 Motion is DENIED.
a. Factual Background
As alleged in the Statement of Facts, Randy D. Dyson ("Dyson") along with his co-defendants, David Acevedo ("Acevedo"), Eric Bryant ("Bryant") and Devion Gentry ("Gentry"), robbed the Bob Moates Gun Shop located in Chesterfield County, Virginia. Gentry waited in the "get-away" car while Dyson, Acevedo and Bryant entered the gun store. As Bryant brandished a firearm and ordered the clerk to lie down on the floor, Dyson and Acevedo collected the firearms in the store and placed them in a duffel bag.
b. Procedural Background
On May 16, 2005, a federal grand jury in the Eastern District of Virginia returned a three-count indictment against Dyson and his three co-defendants, alleging: (1) interference with commerce by violence and aiding and abetting, in violation of 18 U.S.C. §§ 1951 and 2 (count one); (2) use and carry a firearm in crime of violence and aiding and abetting, in violation of 18 U.S.C. §§ 924(c) and 2 (count two); and (3) theft of firearms from a licensed firearms dealer, in violation of 18 U.S.C. § 922(u) (count three).
Dyson entered into a plea agreement with the United States wherein he would plead guilty to counts one and two of the indictment and the United States would move to dismiss count three. On June 1, 2005, Dyson pleaded guilty to counts one and two pursuant to a written plea agreement and accompanying statement of facts. On September 14, 2005, this Court sentenced Dyson to 96 months' imprisonment on count one, and 84 months' imprisonment on count two, to run consecutively, five years' supervised release, a $200 special assessment, and $31, 414.19 in restitution. Dyson did not file any post-trial motions or appeal his case.
Dyson filed the present § 2255 Motion on November 1, 2013. In his § 2255 Motion, Dyson alleges four primary grounds for relief:
Ground One: Ineffective assistance of trial counsel for allowing Dyson's mandatory minimum to be raised from five to seven years for "brandishing" a firearm
Ground Two: The District Court improperly raised Dyson's mandatory minimum sentence after allegedly improper fact-finding in violation of the Due Process Clause and the Sixth Amendment
Ground Three: Dyson is "actually innocent" of the crime of brandishing a firearm
Ground Four: Violation of the Sixth Amendment because Dyson was not charged in the indictment with brandishing, but "found guilty by a preponderance of the evidence" to have participated in the act of brandishing a firearm
The United States filed its response in opposition on December 4, 2013 (ECF No. 103) primarily arguing that Dyson's § 2255 Motion is time-barred. Dyson subsequently filed a reply on January 14, ...