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Andrews v. United States

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

October 12, 2016

DAVID LAMAR ANDREWS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 4:12cr24

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson, United states District Judge

         David Lamar Andrews ("Petitioner1') has submitted a Motion pursuant to Title 28, United States Code, Section 2255 to Vacate Sentence by a Person in Federal Custody (vi§ 2255 Motion"). Having thoroughly reviewed the Parties' filings in this ease, the Court finds this matter is ripe for judicial determination. For the reasons set forth below, Petitioner's § 2255 Motion is DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On March 13, 2012, a Grand Jury in the Eastern District of Virginia indicted Petitioner with six counts. ECF No. 1. On June 5, 2012, Petitioner pled guilty to Count One and Count Five of the indictment. ECF No. 42. Count One charged Petitioner with Conspiracy to Possess with Intent to Distribute more than 28 grams of Cocaine Base, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 841(b)(1)(A) and (B). ECF No. 43. Count Five charged Petitioner with Possession of a Firearm in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1). Id. On November 20, 2012, the Court adjudged Petitioner and found him guilty of Count One and Count Five, and sentenced him to a term of 168 months for Count One and 60 months on Count Five, all to be served consecutively. ECF 71.

         On April 22, 2013, Petitioner requested a copy of the docket sheet and sentencing transcript. ECF No. 84. Petitioner filed no further motions until April 2, 2015, where he requested counsel appointment to evaluate his eligibility for a sentence reduction, pursuant to 18 U.S.C. § 3582(c). ECF No. 89. On April 3, the Court granted Petitioner's Motion to appoint counsel. ECF 90. On August 28, 2015, the Court Granted Petitioner's motion for a sentence reduction. ECF No. 97.

         On June 29, 2016, Petitioner filed a pro se Motion to Vacate and Remand his sentence based on the Supreme Court's ruling in Johnson v. United States, U.S., 135 S.Ct. 2551 (2015), and Welch v. United States, U.S., 136 S.Ct. 1257 (2016). ECF No. 98.

         Petitioner also requested an extension to file a successive Motion to Vacate, Set Aside, or Correct his sentence under 28 U.S.C. § 2255(f)(3)), based on the Supreme Court's recognition of a new right made retroactively applicable to cases on collateral review. ECF No. 98. On July 1, the Court Ordered that the Federal Public Defender be appointed to represent the Petitioner in this matter. ECF No. 99.

         On August 15, 2016, Respondent filed a Response to Petitioner's challenge to his sentence under 18 U.S.C. § 924(c). ECF No. 100. On August 15, 2016, Petitioner, through legal counsel, also filed a response stating, "Undersigned counsel has reviewed Petitioner's pro se motion, the Presentence Report ("PSR"), docket sheet, and other relevant documents. After evaluation of the Petitioner's pro se motion pursuant to § 2255 seeking relief under Johnson, undersigned counsel rests on the Petitioner's motion and submits no additional arguments at this time." ECF No. 101.

         II. LEGAL STANDARD

         When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 2255 motion. United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs post-conviction relief for federal prisoners. It provides in pertinent part:

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).

         In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).

         When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Whether a hearing is mandatory for a § 2255 Motion and whether petitioner's presence is required at the hearing is within the district court's sound discretion and is reviewed for abuse of discretion. Raines ...


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