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United States v. Johnson

United States District Court, E.D. Virginia, Richmond Division

September 29, 2016

UNITED STATES OF AMERICA
v.
TYRE ANTOINE JOHNSON, Petitioner.

          MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255 MOTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE

         Tyre Antoine Johnson, a Virginia inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his federal sentence ("§ 2255 Motion, " ECF No. 82).[1] Johnson has also filed a motion for leave to proceed in forma pauperis (ECF No. 83), which the Court will deny as moot because no filing fee is needed for a § 2255 motion. The Government has responded, asserting, inter alia, that Johnson's § 2255 Motion is barred by the statute of limitations. (ECF No. 93.) For the reasons set forth below, Johnson's § 2255 Motion will be denied.

         I. PROCEDURAL HISTORY

         On August 16, 2011, a grand jury charged Johnson with one count of conspiracy to obstruct, delay, and affect commerce by robbery, in violation of 18 U.S.C. § 1951(a) ("Count One"), and one count of using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) ("Count Two"). (Indictment 1-7, ECF No. 1.) On November 22, 2011, Johnson pled guilty without a written plea agreement to Counts One and Two. (Nov. 22, 2011 Tr. 1-4, ECF No. 76.)

         On March 1, 2012, the Court entered judgment against Johnson and sentenced him to a total of 235 months of imprisonment. (J. 2, ECF No. 67.) The Court sentenced Johnson to 151 months on Count One and 84 months on Count Two, to be served consecutively. (Id.) The Court also directed that Johnson's sentence "be served consecutively to the sentence imposed by the Fredericksburg Circuit Court on September 22, 2011." (Id.) On June 20, 2013, the United States Court of Appeals for the Fourth Circuit affirmed Johnson's sentence. United States v. Johnson, 529 F.App'x 362, 372 (4th Cir. 2013).

         On March 7, 2016, Johnson placed the present § 2255 Motion in the prison mail system for mailing to this Court. (§ 2255 Mot. 13.) 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, Johnson raises the following claims for relief:

Claim One: "The Petitioner is actually innocent of his sentence in Count #2 of Indictment, where he pled guilty to a count that charges multiple offenses." (§ 2255 Mot. 4.)
Claim Two: "Trial counsel was ineffective for failure to challenge the duplicity in Count 2 of Indictment." (Id. at 6.)
Claim Three: "Appellate counsel was ineffective for failure to raise on direct appeal the duplicity in Count #2 of the Indictment."

(Id. at 7.)

         II. ANALYSIS

         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 ...

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