Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Bates

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

January 12, 2017

UNITED STATES OF AMERICA
v.
RICHARD LEE BATES, Petitioner.

          MEMORANDUM OPINION

          Jackson L. Kiser Senior United States District Judge.

         Petitioner Richard Lee Bates, a federal inmate proceeding pro se, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He challenges his 106-month sentence following a guilty plea to drug-related crimes. Bates asserts that he deserves relief following the Supreme Court's recent decision in Johnson v. United States. 135 S.Ct. 2551 (2015). The government filed a motion to dismiss, and Bates responded, making this matter ripe for disposition. I conclude that Bates' petition is untimely, and I grant the government's motion to dismiss.

         I.

         On October 27, 2011, a federal grand jury returned a six-count Indictment against Bates charging him with: (1) two counts of distributing a measurable quantity of a mixture or substance containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) ("Counts One and Six"); (2) two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) ("Counts Two and Five"); (3) distributing a measurable quantity of a mixture or substance containing oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) ("Count Three"); (4) possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) ("Count Four"). Bates pleaded guilty to Counts Three and Four, pursuant to a written Plea Agreement, in exchange for the dismissal of the remaining counts, including the two felon in possession counts. (Plea Agree, at 1 -2, ECF No. 31.)

         A Presentence Investigation Report ("PSR") was created prior to sentencing. It recommended a guideline range of 46 to 57 months for Count Three and a statutory mandatory minimum consecutive sentence of five years to life on Count Four. (PSR ¶¶ 60, 61, ECF No. 56.) On May 31, 2012, 1 sentenced Bates to 106 months' imprisonment, 46 months on Count Three and a consecutive 60 months on Count Four. (Judgment at 2, ECF No. 37.) Bates did not appeal. On May 16, 2016, 1 reduces his sentence to 97 months, 37 months on Count Three and a consecutive 60 months on Count Four, pursuant to Amendment 782. (Order at 1, ECF No. 46.)

         In his § 2255 motion, Bates argues that in light of Johnson, 135 S.Ct. 2551, his conviction under § 924(c) violates his Fifth Amendment Due Process rights. In accordance with Standing Order, 2015-5, 1 appointed the Federal Public Defender's Office to represent Bates, but it has declined to provide supplemental briefing and has withdrawn from the case. (Notice at 1, ECF No. 50.)

         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. Bates 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 applicable to cases on collateral review; or
(4) the facts supporting the claim or claims presented could have been discovered through the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.