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Rice v. United States

United States District Court, E.D. Virginia, Newport News Division

July 12, 2016

JIM RICE, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          RAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion submitted pursuant to Title 28. United Slates Code, Section 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (''§ 2255 Petition." I-XT' No. 35). filed by pro se litigant Jim Rice ("Petitioner"). For the reasons set forth below, the Petition is time-barred and DISMISSED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On February 10, 2011, Petitioner was indicted and charged with one count of Possession with Intent to Distribute Cocaine Base in violation of Title 21, United States Code, Section 841(a)(1), one count of Possession with Intent to Distribute Cocaine in violation of Title 21, United States Code, Section 841(a)(1), and one count of Possession of Marijuana in violation of Title 21. United States Code. Section 844(a). ECF No. 1.

         On February 28, 2011. Petitioner pleaded guilty to Count One of the indictment ECF No. 11. On June 8, 2011, this Court sentenced Petitioner to One Hundred Twenty-Six (126) Months, less than that suggested by the United States Sentencing Guidelines ("Sentencing Guidelines"7). ECF No. 23. Petitioner did not file an appeal. On December 20, 2012, Petitioner filed a motion seeking retroactive application of the Sentencing Guidelines pursuant to Title 18. United States Code, Section 3582, ECF No. 24; that motion was denied on January 27, 201 5, ECF No. 34.

         Petitioner, acting pro se, filed the instant § 2255 Petition on November 2, 2015. ECF No. 35. On December IS. 2015. the Government filed its Response, ECF No. 38. and on March 21. 2016, Petitioner field his late Reply. ECF No. 42.

         Petitioner raises three grounds for relief. First. Petitioner alleges that Newbold v. United States, 134 S.Ct. 897 (2014), by acknowledging a suite of Fourth Circuit cases, created a newly asserted right, retroactively applicable to collateral review and to Petitioner. Second, Petitioner argues that he was incorrectly classified as a career offender in violation of Johnson v. United States. 135 S.Ct. 2551 (2015), when this Court allegedly used Petitioner's prior juvenile conviction as a predicate offense for a violent felony. Third, Petitioner claims that government employees from the Department of Justice and Bureau of Prisons obstructed and impeded the timely filing of his § 2255 Petition.

         The Government argues that the instant § 2255 Petition is time-barred both as to final judgment and as to the retroactively applicable rights asserted by Petitioner. Additionally, the Government argues that the Court should dismiss the § 2255 Petition because Petitioner's claims of obstruction arc not supported by any material fact on record, and the circumstances do not rise to the level of rare, extraordinary circumstances to justify equitable tolling provided in United States v. Sosa7 364 F.3d 507. 511-12 (4th Cir. 2004). In the alternative, the Government argues the following: Petitioner's reliance on Newbold is misplaced because he did not receive a sentence in excess of statutory maximums and did not suffer a miscarriage of justice; Johnson is inapplicable to Petitioner because he was sentenced under the Sentencing Guidelines, not the Armed Career Criminal Act; Petitioner's juvenile conviction was not used as a predicate offense as a violent felony because his career offender status resulted solely from prior felony drug convictions: and finally. Petitioner received a lesser variance sentence, and thus was not prejudiced by his career offender status.

         II. LEGAL STANDARDS

         A. Section 2255 Generally

         Section 2255 of Title 28 of the United Slates Code provides prisoners in federal custody a means of collateral attack against their sentence as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.

28 U.S.C. § 2255(a). It is within the discretion of the district court to deny § 2255 motions without a hearing. Raines v. United Stales.423 F.2d 526, 529-3 1 (4th Cir. 1970). When deciding a § 2255 motion, the court must grant a prompt hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." id $ 2255(b); however, the petitioner bears the burden of proving his claim by a preponderance of the evidence, see Miller v. United States,261 F.2d 546, 547 (4th Cir. 1958). Additionally, pro se filers are entitled to a more liberal construction of their pleadings. Gordon v. Leeke,574 F.2d 1147. 1151 (4th Cir. 1978). Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large,332 U.S. 174, 178 (1947). For this ...


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