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Blow v. United States

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

October 28, 2016

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


          Raymond A. Jackson, United States District Judge.

         Demeatric Eugene Blow ("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 on three counts. ECF. No. 11. On May 27, 2011, Petitioner pled guilty to Counts One and Two of the Indictment. ECF No. 52. Count One charged Petitioner with Interference with Commerce by Robbery, in violation of 18 U.S.C. § 1951. ECF No. 54. Count Two charged Petitioner with Brandishing a Firearm during and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Id. On October 3, 2011, the Court adjudged Petitioner and found him guilty of Counts One and Two, and sentenced him to a term of 38 months for Count One, and a term of 84 months on Count Two, all to be served consecutively. ECF No. 87.

         On April 1, 2016, Petitioner filed a pro se Motion requesting the appointment of counsel to reevaluate his conviction under 18 U.S.C. § 924(c). ECF No. 110. On April 20, 2016, the Court denied Petitioner's Motion to Appoint Counsel. ECF No. 111. On June 13, 2016, Petitioner filed a Motion to Vacate his sentence under 28 U.S.C. § 2255 and the Supreme Court's ruling in Johnson v. United States, ___U.S.___, 135 S.Ct. 2551 (2015). ECF No. 115. On July 8, 2016, the Court appointed the Federal Public Defender to represent Petitioner in this matter, and ordered the United State Attorney to file a response to Petitioner's Motion. ECF No. 118. On September 6, 2016, Respondent filed a Motion to Dismiss, ECF No. 126, and Petitioner's counsel filed a Memorandum in support of Petitioner's Motion to Vacate. ECF No. 127. On September 20, 2016, Petitioner filed a response in opposition to Respondent's Motion to Dismiss. ECF No. 128.


         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 ...

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