United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, United States District Judge
Barker, a federal inmate proceeding pro se, has
filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. The government has filed a
motion to dismiss, and the time allotted for Barker to
respond has elapsed, making this matter ripe for
consideration. After reviewing the record, the court
concludes that the government's motion to dismiss must be
granted and Barker's § 2255 motion must be dismissed
September 26, 2013, a federal grand jury charged Barker with
conspiracy to possess with intent to distribute marijuana, in
violation of 21 U.S.C. § 846 ("Count One") and
possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e) ("Count
pleaded guilty to both counts pursuant to a written plea
agreement. The Presentence Investigation Report
("PSR") recommended a total offense level of 31
because Barker qualified as an armed career criminal under
The Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§§ 922(g) and 924(e). PSR ¶ 18, ECF No. 38.
Without the armed career criminal designation, Barker's
total offense level would have been 25, which included a
four-level enhancement for possession of a firearm.
Id. ¶¶ 13, 17. The PSR listed the
following prior felony convictions to support the armed
career criminal enhancement; a conviction on March 30, 2011
for possession of marijuana with intent to distribute and
convictions on November 18, 2011 of four counts of
distribution of marijuana. Id. ¶¶ 26, 27.
The PSR recommended a criminal history category of VI because
Barker qualified as an armed career criminal, resulting in a
guideline imprisonment range of 188 to 235 months.
Id. ¶ 49. In addition, as an armed career
criminal, he was subject to a mandatory statutory sentence of
15 years to life on Count Two. 18 U.S.C. § 922(g)(1) and
18 U.S.C. § 924(e)(1).
court sentenced Barker to a total of 180 months'
imprisonment on both counts, to be served concurrently, and
his judgment was entered on May 5, 2014. Barker did not
appeal. On February 26, 2016, Barker filed this § 2255
motion alleging that the district court imposed an
unconstitutional sentence in light of Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015).
court appointed the Federal Public Defender's Office to
represent Barker and provide supplemental briefing, if
necessary, in light of Johnson, pursuant to Standing
Order 2015-5. Subsequently, the Federal Public Defender's
Office declined to file additional pleadings and filed a
motion to withdraw as counsel, which the court granted.
Notice of No Additional Filing at 1, ECF No. 52; Order, ECF
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). Barker 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).
petition under § 2255 must adhere to strict statute of
limitations requirements. A person convicted of a federal
offense must file a § 2255 motion within one year of the
latest date on which:
(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 ...