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United States v. Mase

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

January 12, 2017

UNITED STATES OF AMERICA
v.
TOBY JOSEPH MASE, Petitioner.

          MEMORANDUM OPINION

          Jackson L. Kiser Senior United States District Judge.

         Petitioner Toby Joseph Mase, a federal inmate, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He challenges his 188-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"). Mase 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 Mase responded, making this matter ripe for disposition. I conclude that Mase's petition is untimely, and I grant the government's motion to dismiss.

         I.

         On June 21, 2007, a federal grand jury returned an Indictment against Mase charging him with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e) ("Count One") and one count of knowingly possessing a stolen firearm, in violation of 18 U.S.C. § 922(j) ("Count Two"). Mase pleaded guilty to Count One, pursuant to a written Plea Agreement, in exchange for the dismissal of Count Two. (Plea Agree, at 2-3, ECF No. 23.) The Plea Agreement stated, in accordance with the ACCA, that "there may be a mandatory minimum sentence of 15 years imprisonment" for Count One. (Id. at 1.)

         A Presentence Investigation Report ("PSR") was created prior to sentencing. It recommended that Mase be designated an armed career criminal based on three prior Virginia statutory burglary convictions. (PSR ¶ 33, 34, ECF No. 51.) The burglaries occurred on three separate dates: between September 28 and 29, 1990, October 8, 1990, and April 20, 1993. (Id.) Because of the armed career criminal designation, the PSR recommended a total offense level of 31 and a criminal history category of VI, resulting in an advisory guideline range of 188 to 235 months' incarceration. (Id. ¶ 73.) Pursuant to the ACCA, he faced a statutory mandatory minimum sentence of fifteen years. (Id. at ¶ 72.) Without the armed career criminal enhancement, Mase would have faced a statutory maximum sentence often years' imprisonment. 18 U.S.C. § 924(a)(2).

         Defense counsel filed a sentencing memorandum, arguing that I impose a sentence of not more than the statutorily required 180 months and that such sentence should run concurrent to a 126-month state sentence imposed for related criminal activity. (Sent. Mem. at 1, ECF No. 29.) On February 21, 2008, 1 sentenced Mase to 188 months' imprisonment, with 104 months to run concurrent to his state sentence and 84 months to run consecutive to it. (Judgment at 2, ECF No. 32.) Mase did not appeal.

         In his § 2255 motion, Mase, through counsel, 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.

         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. Mase 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).

         III.

         A § 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 ...

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