United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
Lee Pernell, a federal inmate proceeding pro se, has
filed a motion pursuant to 28 U.S.C. § 2255
("§ 2255 Motion/' ECF No. 151). Before the
Clerk transmitted the § 2255 Motion to the United
States, the Court received a second motion pursuant to 28
U.S.C. § 2255 ("Amended § 2255 Motion, "
ECF No. 152) from Pernell. In a Motion to Amend (ECF No.
165), received from Pernell on July 10, 2016, Pernell
explains that the Amended § 2255 Motion was
"actually his original motion he intended to file, and
the first motion was just a rough draft that movant had done
as a practice motion to develop accurate articulation of his
main points in the space provided." (Id. at
The Court will grant Pernell's Motion to Amend (ECF No.
165), finding that the Amended § 2255 Motion (ECF No.
152) replaces the initial § 2255 Motion (ECF No. 151).
The action therefore proceeds solely on the Amended §
Government has responded, asserting, inter alia,
that Pernell's Amended § 2255 Motion is untimely
filed. (ECF No. 158.) Pernell has filed a Reply. (ECF No.
167.) Pernell has also filed a Motion to Challenge Prior
Conviction. (ECF No. 166.) For the reasons set forth below,
Pernell's Amended § 2255 Motion (ECF No. 152) will
be dismissed as barred by the statute of limitations.
23, 2014, the Government filed a Criminal Information,
charging Pernell with one count of possessing, using,
carrying, brandishing, and discharging a firearm during and
in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c). (Crim. Information 1, ECF No. 135.)
That same day, Pernell pled guilty to the one-count Criminal
Information. (Plea Agreement ¶ 1, ECF No. 139.) On
August 22, 2014, the Court entered judgment against Pernell
and sentenced him to 3 00 months of
imprisonment. (J. 2, ECF No. 149.) Pernell did not
November 15, 2015, Pernell placed his initial § 2255
Motion in the prison mail system for mailing to this Court.
(ECF No. 151, at 15.) The Court deems the § 2255 Motion
filed as of that date. See Houston v. Lack, 487 U.S.
266, 276 (1988). Pernell raises the following claims for
Claim One: "Counsel is ineffective in violating
movant's 6th amendment rights and due process." (Am.
§ 2255 Mot. 4.)
Claim Two: "Counsel is ineffective at reconciling
conflict of interest." (Id. at 5.)
Claim Three: "Counsel is ineffective in ensuring
movant's due process rights were not violated."
(Id. at 6.)
Claim Four: "Counsel failed to present newly discovered
evidence." (Id. at 8.)
Claim Five: "Counsel is ineffective in performing
minimal investigations." (Id. at 12.)
Claim Six: "The district court erred in not allowing the
movant the opportunity for a continuance to properly
investigate and review court documents and many other records
dating back to 2009." (Id. at 13.)
Claim Seven: "The district court erred in not allowing
movant to appeal or present evidence to reconsider its ruling
against movant's claim of prosecutorial misconduct by
Norman or conflict of interest by Everhart, before resuming
movant's retrial." (Id. at 14.)
Claim Eight: "The district court erred in allowing
defense counsel Gavin to represent movant after his admitted
conflict in pursuing or cross-examining AUSA Norman and
movant's prior counsel Everhart, adversely affecting
movant's constitutional right to due process of
law." (Id. at 15.)
Claim Nine: "A fundamental miscarriage of justice has
caused irreversible damage to movant receiving a fair trial
or relief from an unfair ...