United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, United States District Judge.
Loyda-Hernandez,  a federal inmate proceeding pro
se, has filed a petition to vacate, set aside or correct
his sentence under 28 U.S.C. § 2255. The government has
filed a motion to dismiss, and Loyda-Hernandez has responded,
making this matter ripe for consideration. Because
Loyda-Hernandez has not raised any claims entitling him to
relief, his petition must be dismissed.
November 21, 2013, a federal grand jury indicted
Loyda-Hernandez for illegally reentering the United States
after having been removed "on or about July 25, 2005,
subsequent to a conviction for commission of an aggravated
felony, as defined in 8 U.S.C. § 1101(a)(43), " in
violation of 8 U.S.C. § 1326. Indictment at 1, ECF No.
1. Loyda- Hernandez, a Mexican national, had previously been
removed from the United States on two occasions. On December
15, 1995, he was convicted of second-degree rape in North
Carolina, sentenced to serve between 63 and 85 months'
imprisonment, and removed on February 17, 2001. On October 7,
2002, he was convicted of trafficking in cocaine and
conspiracy to traffic cocaine in North Carolina and sentenced
to serve between 35 and 42 months' imprisonment, and was
again removed on July 25, 2005. Factual Basis at 2, ECF No.
pleaded guilty, pursuant to a written plea agreement, in
accordance with Rule 11(c)(1)(B) of the Federal Rules of
Criminal Procedure. Because he pleaded guilty to a §
1326 violation after having been convicted of an aggravated
felony, he faced a maximum sentence of 20 years'
incarceration. 8 U.S.C. § 1326(b)(2). He stipulated to a
base offense level of 8 under United States Sentencing
Guideline ("U.S.S.G.") § 2L1.2, for unlawfully
entering or remaining in the United States. In addition, he
stipulated to an 8-level enhancement under U.S.S.G. §
2L1.2(b)(1)(C) for having previously been deported following
a conviction for an aggravated felony. PSR at 3, ECF No. 18.
The plea agreement provided that Loyda-Hernandez understood
"other guideline sections may be applicable" to his
case and that the court was not bound by any stipulations
included in the plea agreement. Id. at 3, 11.
Presentence Investigation Report ("PSR")
recommended a base offense level of 8 and a 16-point
enhancement, rather than the 8-point enhancement to which he
stipulated in the plea agreement, because Loyda-Hernandez
previously had been "convicted of a crime of violence,
2nd degree rape, and a drug trafficking offense, trafficking
in cocaine, " in accordance with U.S.S.G. §
2L1.2(b)(1)(A). PSR ¶ 13, ECF No. 28. The PSR calculated
Loyda-Hernandez's guideline range as 46 to 57 months.
Id. at ¶ 41.
Loyda-Hernandez's sentencing hearing, the court accepted
the PSR and calculated his advisory guideline range as 46 to
57 months. Statement of Reasons at 1, ECF No. 27. The court
sentenced Loyda-Hernandez to the low end of that range, 46
months. Judgment at 2, ECF No. 26. Loyda-Hernandez did not
appeal. He filed this § 2255 petition alleging diat his
"prior aggravated/violent offense(s) are no longer
predicates based on a new constitutional ruling" in
Johnson v. United States. 135 S.Ct. 2551 (2015).
§ 2255 Mot. at 4, ECF No. 30. In accordance with
Standing Order 2015-5, the court appointed the Federal Public
Defender to represent Loyda-Hernandez and file additional
briefing, if necessary. The Federal Public Defender declined
to file any additional briefing. Notice at 2, ECF No. 33.
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his sentence was
"imposed in violation of the Constitution or laws of the
United States;" (2) that "the court was without
jurisdiction to impose such a sentence;" or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). Loyda-Hernandez bears the burden of
proving grounds for a collateral attack by a preponderance of
the evidence. Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958).
claim fails, however, because it is untimely. A § 2255
petition must adhere to strict statute of limitations
requirements before a court may consider any substantive
claims. A person convicted of a federal offense must file a
§ 2255 motion within one year of the latest date on
(1) the judgment of conviction becomes final;
(2) 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 governmental action;
(3) 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 facts supporting the claim or claims presented could
have been discovered through the ...