United States District Court, W.D. Virginia, Lynchburg Division
2255 MEMORANDUM OPINION
NORMAN K. MOON, District Judge.
Petitioner Andre Ricardo Davis, a federal inmate proceeding pro se, filed this motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, or, alternatively, for relief under 28 U.S.C. § 2241 or under the writs of error coram nobis and audita querela. Davis claims that his 240-month sentence for conspiring to distribute cocaine base was improperly enhanced pursuant to 21 U.S.C § 851. The government has filed a motion to dismiss and the time period for Davis to respond has expired; thus, this matter is ripe for consideration. I conclude that Davis's petition is untimely filed. Therefore, I will grant the government's motion to dismiss.
On July 20, 1999, Davis was charged in a 16-count indictment handed down by a federal grand jury sitting in Roanoke, Virginia. On September 10, 1999, the government filed an Information under § 851 to enhance the punishment based on a prior felony drug conviction, specifically possession of cocaine with the intent to distribute, with a conviction date of October 22, 1993. The government superseded the indictment on February 16, 2000. On March 23, 2000, Davis entered into a plea agreement whereby he would plead guilty to Count One of the indictment. Count One alleged that from January 1993 through July 23, 1999, Davis conspired to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. On April 10, 2000, a plea agreement was filed with the court pursuant to Rule 11 of the Federal Rules of Criminal Procedure, and was fully endorsed by Davis, his counsel, and the Assistant United States Attorney. The plea agreement stated:
Because I committed this offense after having been previously convicted of a felony drug offense, Count One of the Superseding Indictment carries a maximum penalty of an $8, 000, 000 fine and life imprisonment, together with a period of supervised release. There is a mandatory minimum of twenty years imprisonment with regard to that count.
My attorney, Marc Small, Esq., has informed me of the nature of this charge and the elements of the charge which must be proved by the Government beyond a reasonable doubt before I could be found guilty as charged.
On April 10, 2000, I accepted Davis's plea of guilty.
On July 7, 2000, I conducted Davis's sentencing hearing. Davis was present with counsel. I adopted the presentence report ("PSR"), which found that the guideline sentence was that same as the statutorily required minimum sentence of 240 months. U.S.S.G. § 5G1.1(b). I imposed a sentence of 240-months imprisonment. Davis did not appeal.
Davis filed his § 2255 motion on January 27, 2014, claiming that his § 851 enhancement was improper because the predicate conviction from 1993 was "part of the same common scheme and plan of the conspiracy." Davis further claims that the government failed to properly file notice of the enhancement and failed to provide Davis with a copy of the Information seeking to enhance his statutory minimum. The government argues that Davis's § 2255 claim is untimely filed.
A federal prisoner must file his § 2255 petition within one year of the ...