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Sports v. United States

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

October 28, 2016

COREY L. SPORT, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 4:7cr154


          Raymond A. Jyckson United ataies District Judge

         Corey L. Sport ("Petitioner") lias submitted a Motion pursuant to Title 28 United Slates 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 November 14, 2011, a Grand Jury in the Eastern District of Virginia indicted Petitioner in five counts. ECF No. I. On March 11, 2008, Petitioner pled guilty to Counts One, Three and Five of the indictment. ECF No. 11. Count One charged Petitioner with Conspiracy to Affect Commerce by Robbery in violation of Title 18 United Stales Code Section 1951(a). Id. Counts Three and Five charged Petitioner with Possessing and Brandishing a Firearm in Furtherance of a Crime of Violence in violation of Title 18 United States Code Section 924(c)(1). Id.

         On June 11, 2008, the Court adjudged Petitioner and found him guilty of Counts One, Three and Five, and sentenced him to a term of 12 months on Count One, 84 months on Count Three, and 300 months on Count Five, all to be served consecutively. ECF No. 22. On June 16, 2008, Petitioner motioned for a copy of his Docket sheet. ECF No. 23. On May 7, 2009, Petitioner motioned for a copy of his Judgment. ECF No. 24. On May 11, 2009, the Clerk's Office responded to Petitioner's request for a copy of his Judgment. ECF No. 25. On September 13, 2012, Petitioner filed an additional motion for a copy of his Docket Report and Judgment, and noted his inability to pay printing fees. ECF No. 36. On September 17, 2012, the Clerk provided Petitioner with a copy of his Docket Report. ECF No. 37. On June 24, 2016, the Federal Public Defender filed a Motion to Vacate Petitioner's conviction under 28 U.S.C. § 2255 and the Supreme Court's ruling in Johnson v. United Stales, U.S., 135 S.Ct. 2551 (2015), and Welch v. United States, __ U.S. __, 136 S.Ct. 1257 (2016). ECF No. 39. On August 3, 2016, Respondent filed a Motion to Dismiss. ECF No. 45. On August 10, 2016, Petitioner filed a Response to Respondent's Motion to Dismiss. ECF No. 46.


         When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 2255 motion. United States v. W'mestock, 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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