United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON UNITED STATES DISTRICT JUDGE
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). 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.
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
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).
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.
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.)
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)
(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run ...