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United States v. Cherry

United States District Court, Eastern District of Virginia, Richmond Division

May 8, 2015

UNITED STATES OF AMERICA
v.
GIOVANNI CHERRY

MEMORANDUM OPINION

Robert E. Payne Senior United States District Judge

Giovanni Cherry, a federal inmate proceeding pro se, brings this motion pursuant to 28 U.S.C. § 2255 (§ 2255 Motion, " ECF No. 33.) The Government has moved to dismiss, inter alia, on the ground that the statute of limitations bars the § 2255 Motion. For the reasons set forth below, the § 2255 Motion will be dismissed as barred by the statute of limitations.

I. PROCEDURAL HISTORY

Cherry pleaded guilty to possession of a firearm by a convicted felon. (Plea Agreement 1, ECF No. 14.) On November 17, 2009, the Court entered final judgment and sentenced Cherry to 293 months of imprisonment. (J. 2, ECF No. 29.)

On December 9, 2013, Cherry placed the present § 2255 Motion in prison mail system for mailing to this Court. (§ 2255 Mot. 11.) The Court deems the § 2255 Motion filed as of that date. See Houston v. Lack, 487 U.S. 266, 276 (1988). In his § 2255 Motion, Cherry asserts that the Court incorrectly sentenced him as an Armed Career Criminal. (§ 2255 Mot. 5.) Specifically, Cherry contends that in light of the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013), (see Mem. Supp. § 2255 Mot. at 1), the "Court erred in applying the Modified Category Approach to treat prior nonviolent Breaking and Entering violation of Virginia State law as predicate for sentencing" him as an Armed Career Criminal. {§ 2255 Mot. 5.)

II. STATUTE OF LIMITATIONS

Section 101 of the Antiterrorism and Effective Death Penalty Act {"AEDPA") amended 28 U.S.C. § 2255 to establish a one-year period of limitation for the filing of a § 2255 Motion. Specifically, 28 U.S.C. § 2255(f) now reads:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

A. The Statute Of Limitations Bars Cherry's ยง 2255 ...


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