United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser Senior United States District Judge.
Timothy Neal Wright, a federal inmate, filed a motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. He challenges his 180-month sentence following a
guilty plea to being a felon in possession of a firearm, in
which I determined that he qualified as an armed career
criminal under the Armed Career Criminal Act
("ACCA"). Wright asserts that he no longer
qualifies as an armed career criminal because his predicate
Virginia statutory burglary convictions no longer support
such a designation. The government filed a motion to dismiss,
and Wright responded, making this matter ripe for
disposition. I conclude that Wright's petition is
untimely, and I grant the government's motion to dismiss.
11, 2006, a federal grand jury returned an Indictment against
Wright charging him with three counts of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g) and 924(e). Wright pleaded guilty to one
count, pursuant to a written Plea Agreement, in exchange for
the dismissal of the remaining two counts. (Plea Agree, at 1,
2, ECF No. 31.) The Plea Agreement stated, in accordance with
the ACCA, that "if I am determined to be an Armed Career
Criminal, pursuant to Title 18, United States code, section
924(e), it will change my range of incarceration from a 0 -
10 years, to a mandatory sentence of fifteen years, and
maximum of life in prison." (Id.) In addition,
Wright reserved the right to challenge and appeal any armed
career criminal designation that the I might find.
(Id. at 4.)
Presentence Investigation Report ("PSR") was
created prior to sentencing. It recommended that Wright be
designated an armed career criminal based on four prior
Virginia statutory burglary convictions. (PSR ¶ 22, 42,
44, ECF No. 41.) The burglaries occurred on two separate
dates, with one burglary occurring on August 3-4, 1992 and
three burglaries occurring on October 1, 1992. (Id.
at ¶ 42, 44.) Because of the armed career criminal
designation, the PSR recommended a total offense level of 30
and a criminal history category of VI, resulting in an
advisory guideline range of 168 to 210 months'
incarceration. (Id. ¶ 81.) However, pursuant to
the ACCA, he faced a statutory mandatory minimum sentence of
fifteen years, which increased the bottom of his advisory
guideline range to 180 to 210 months. (Id. at ¶
82.) Without the armed career criminal enhancement, Wright
would have had a total offense level of 19, and a criminal
history score of VI, resulting in a sentencing range of 63 to
sentencing hearing, defense counsel argued that Wright should
not face an enhanced sentence under the ACCA because the
Virginia burglaries that he committed on the same day
"happened on the same occasion" and were part of
the "same series of conduct." (Sent. Hr'g Tr.
at 3, 5, ECF No. 49.) The government responded that the
burglaries were all committed on different occasions, for
ACCA purposes, because different businesses were burgled and
involved different victims. (Id. at 5-6.) I agreed
with the government, based on Fourth Circuit case law, and
concluded that each of Wright's four convictions for
breaking and entering counted as a separate burglary under
the ACCA. (Id. at 10.) I sentenced Wright to 180
months' imprisonment. Wright appealed, arguing that
application of the ACCA to the facts of his case violated the
Eight Amendment protections against cruel and unusual
punishment and that I erred by failing to determine whether
his breaking and entering convictions qualified as burglaries
for ACCA purposes. United States v. Wright, 254
Fed.App'x 974, 975 (4th Cir. 2007). The Fourth Circuit
rejected Wright's claims and affirmed the judgment.
Id. at 976.
§ 2255 motion, Wright alleges that following the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), his Virginia statutory burglary
convictions can no longer support his enhanced sentence under
the ACCA. In accordance with Standing Order 2015-5, 1
appointed the Federal Public Defender's Office to
represent Wright and it has provided supplemental briefing.
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. Wright 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).
§ 2255 petition must adhere to strict statute of
limitations requirements before any of the substantive issues
may be addressed. 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 ...