United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser Senior United States District Judge.
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.
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.)
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).
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.
§ 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.
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.
§ 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 ...