United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE.
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
FACTUAL AND PROCEDURAL HISTORY
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.
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.
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.
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
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
Section 2255 Generally
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
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 ...