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United States v. Pernell

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

November 15, 2016

UNITED STATES OF AMERICA
v.
ROBERT LEE PERNELL

          MEMORANDUM OPINION

          ROBERT E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE

         Robert 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 2.)[1] 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 § 2255 Motion.

         The 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.

         I. PROCEDURAL HISTORY[2]

         On July 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.[3] (J. 2, ECF No. 149.) Pernell did not appeal.

         On 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 relief:

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 ...

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