United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge
Ivey Woodley ("Petitioner") has submitted a Motion
pursuant to Title 28 United States Code Section 2255 to
Vacate and Correct Sentence ("§ 2255 Motion").
Having thoroughly reviewed the Parties' filings in this
case, the Court finds this matter is ripe for judicial
determination. For the reasons set forth below,
Petitioner's § 2255 Motion is DENIED and
Respondent's Motion to Dismiss is GRANTED.
FACTUAL AND PROCEDURAL HISTORY
April 8, 2011, an Eastern District of Virginia Grand Jury
returned an indictment charging Petitioner with two counts.
ECF No. 3. On September 16, 2011, Petitioner pled guilty to
count fifty-seven of the indictment. ECF No. 296. Count
fifty-seven charged Petitioner with Possession of a Firearm
in Furtherance of a Crime of Violence, in violation of 18
U.S.C. § 924(c)(1)(A). ECF No. 297. On January 4, 2012,
the Court sentenced Petitioner to a term of one hundred and
twenty months imprisonment on count fifty-seven. ECF No. 413.
23, 2016, Petitioner filed a pro se Motion to Vacate Sentence
under 28 U.S.C. § 2255 ("§ 2255") and the
Supreme Court's ruling in Johnson v. United States,
___ U.S. ___, 135 S.Ct. 2551 (2015). ECF No. 499. On
July 1, 2016, the Court ordered the Federal Public Defender
to represent Petitioner in this matter. ECF No. 509. On July
21, 2016, Respondent filed a Motion to Dismiss. ECF No. 524.
On July 22, 2016, the Federal Public Defender responded to
Respondent's Motion to Dismiss. ECF No. 529.
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
28 U.S.C. § 2255(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).
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).
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 v. United
States, 423 F.2d 526, 529 (4th Cir. 1970) (citing
Machibroda v. United States, 368 U.S. 487 (1962)).
§ 2255 motion is subject to a one-year statute of
limitations. 28 U.S.C. § 2255(f). The beginning date for
that one-year limitations period is not universal, but is
dependent upon the motion's allegations. Petitioner's
§ 2255 Motion is not timely under § 2255(0(1)
because he filed more than one year after his judgment of
conviction became final. The motion is not timely under
§ 2255(f)(2) because Petitioner alleges no unlawful
governmental action that prevented him from filing the §