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United States v. Barker

United States District Court, W.D. Virginia, Roanoke Division

November 16, 2016

UNITED STATES OF AMERICA
v.
RASEAN BARKER, Petitioner

          MEMORANDUM OPINION

          Michael F. Urbanski, United States District Judge

         Resean 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 as untimely.

         I.

         On 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 Two").

         Barker 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).

         The 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).

         The 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 No. 53.

         II.

         To 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).

         A 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 ...

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