United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Petitioner Johnny Francisco
Peets's ("Petitioner") Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255.
November 19, 2008, Petitioner Johnny Peets pled guilty to a
one-count information charging him with Conspiracy to
Distribute 500 grams or more of cocaine in violation of 21
U.S.C. §§ 841(a)(1) and 846. Petitioner has a
lengthy criminal record, including multiple felony
convictions for controlled substance offenses. He was
convicted in 1991 and 1992 for possession to distribute
cocaine in Prince George's County Circuit Court. In 2003,
he was convicted in the United States District Court,
District of Columbia, for possession with intent to
distribute cocaine and conspiracy to distribute. While on
supervised release, he committed the offense that led to his
2008 guilty plea, which is the subject of his collateral
March 27, 2009, the Court sentenced Petitioner, who was
classified as a criminal history category VI. Upon learning
that Petitioner had several prior felony convictions for
controlled substance offenses, the Court enhanced
Petitioner's status to a career offender under the United
States Sentencing Guidelines ("Guidelines") §
4B1.1. Petitioner received a below-Guidelines prison sentence
of 160 months, and he is scheduled to be released on June 11,
27, 2016, Petitioner filed the instant motion under 28 U.S.C.
§ 2255. He provides one ground for relief: that his
Fifth Amendment right to due process was violated because the
trial court erroneously enhanced his sentence. Petitioner
argued that his claim is timely because he filed within one
year of when the Supreme Court decided Johnson v. United
States, 135 S.Ct. 2551 (2015). For the reasons stated
below, Petitioner's motion is both untimely and without
28 U.S.C. § 2255, a petitioner may attack his sentence
or conviction on the grounds that it was imposed in violation
of the Constitution or laws of the United States, that the
court was without jurisdiction to impose such a sentence,
that the sentence exceeded the maximum authorized by law, or
that the sentence otherwise is subject to collateral attack.
28 U.S.C. § 2255; see also Hill v. United
States, 368 U.S. 424, 426-27 (1962). The petitioner
bears the burden of proving his grounds for collateral relief
by a preponderance of the evidence. Vanater v.
Boles, 377 F.2d 898, 900 (4th Cir. 1967).
Petitioner's motion is untimely. There is a one year
statute of limitations for a § 2255 motion. To be
timely, the motion must be filed within one year of
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f); see also Muse v. United
States, No. 2:13CR173-6, 2016 WL 3387172, at *1 (E.D.
Va. June 8, 2016). Petitioner contends that his motion is
timely because it was filed within one year of when
Johnson was decided. In Johnson, the
Supreme Court held that imposing an increased sentence for
"crimes of violence" under the residual clause of
the Armed Career Criminal Act ("ACCA") was
unconstitutionally vague and violated the Due Process Clause.
135 S.Ct. at 2563. The Supreme Court in Welch v. United
States, 136 S.Ct. 1257 (2016), held that Johnson's
invalidation of the ACCA's residual clause has a
retroactive effect to cases on collateral review.
Id. at 1265.
Petitioner's motion is untimely because his challenge is
unrelated to the rights recognized by the Supreme Court in
Johnson and Welch. Petitioner's
enhancing prior convictions were controlled substance
offenses, not crimes of violence. Johnson's holding on
the vagueness of the residual clause for crimes of violence
is unrelated to sentencing for controlled substance offenses.
Rather than challenging his conviction based on a right
created in Johnson, Petitioner challenges the
application of the Guidelines § 4B1.2(b) relating to
predicate "controlled substance offenses." Thus,
Petitioner's motion, which was filed more than seven
years after his conviction became final, is barred by the
one-year statute of limitations.
even if the motion was timely, Petitioner's motion based
on the Guidelines is without merit. Section 4B1.1 enhances a