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Rogers v. United States

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

October 27, 2016

UNITED STATES OF AMERICA, Respondent. Criminal Action No. 2:11cr50



         Zagla Von Rogers ("Petitioner") has submitted a Motion pursuant to Title 28 United States Code Section 2255 to Vacate Sentence by a Person in Federal Custody ("§ 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 Motion to Vacate is DENIED and Respondent's Motion to Dismiss is GRANTED.


         On April 6, 2011, a Grand Jury in the Eastern District of Virginia indicted Petitioner in three Counts. ECF No. 11. On May 27, 2011, the Court issued an Order accepting Petitioner's plea of guilty to Count One and Count Two of the indictment. ECF. No. 51. Count One charged Petitioner with interference with commerce by robbery and conspiracy to interfere with commerce, in violation of 18 U.S.C. § 1951 (Hobbs Act robbery). ECF No. 11. Count Two charged Petitioner with use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Id. On November 10, 2011, the Court adjudged Petitioner and found him guilty of Count One and Count Two, and sentenced him to a term of 38 months for Count One and 84 months for Count Two, to be served consecutively. ECF No. 94. On June 17, 2016 Petitioner filed a Motion to Vacate his conviction under 28 U.S.C. § 2255 and the Supreme Court's ruling in Johnsonv. United States, __U.S.__, 135 S.Ct. 2551 (2015). ECF No. 116. On July 1, 2016 the Court Ordered the Federal Public Defender be appointed to represent the Petitioner in this matter. ECF No. 117. On August 15, 2016, Respondent filed a Motion to Dismiss Petitioner's Section 2255 Petition. ECF No. 121. On August 22, Petitioner, through legal counsel, filed a response to the Court's Order. ECF No. 124. On August 23, 2016, Petitioner also filed a Response to Respondent's Motion to Dismiss. ECF No. 125.


         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 v. United States, 423 F.2d 526, 529 (4th Cir. 1970) (citing Machibroda v. United States, 368 U.S. 487 (1962)).


         A § 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(f)(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 § 2255 Motion. The motion is not timely under § 2255(f)(4) because Petitioner provides no evidence of newly discovered facts that would affect his sentence.

         Petitioner argues that his motion is timely under 2255(f)(3), which states that the one-year time limit begins on "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." 28 U.S.C. § 2255(f)(3).

         "Thus, to obtain the benefit of the limitations period stated in § 2255(f)(3), [a petitioner] must show: (1) that the Supreme Court recognized a new right; (2) that the right 'has been ... made retroactively applicable to cases on collateral review'; and (3) that he filed his motion within one year of the date on which the Supreme Court recognized the right." United States v. Mathur,685 F.3d 396, 398 (4th Cir. 2012) (quoting § 2255(f)(3)). The threshold issue for the Court, then, is whether this motion is timely under § 2255(f)(3). ...

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