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United States v. Turpin

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

January 12, 2017

UNITED STATES OF AMERICA
v.
VINCENT EDWARD TURPIN, Petitioner.

          2255 MEMORANDUM OPINION

          Norman K. Moon United States District Judge.

         Vincent Edward Turpin, a federal inmate proceeding pro se, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government filed a motion to dismiss, and Turpin has responded, making this matter ripe for consideration. After reviewing the record, I conclude that the government's motion to dismiss must be granted and Turpin's § 2255 motion must be dismissed as untimely.

         I.

         On August 17, 2006, a federal grand jury charged Turpin in a two-count indictment with: (1) distributing a measurable quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (“Count One”); and (2) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (“Count Two”). On August 17, 2007, Turpin pleaded guilty to Count Two pursuant to a written plea agreement, and the government agreed to dismiss Count One. (Plea Agree. at 1-2, ECF No. 35.) The Presentence Investigation Report (“PSR”) recommended a total offense level of 30 because Turpin qualified as an armed career criminal under The Armed Career Criminal Act (“ACCA”), 18 U.S.C. §§ 922(g) and 924(e). (PSR ¶ 19, ECF No. 76.) Without the armed career criminal designation, Turpin's total offense level would have been 23, which included a two-level enhancement for possession of firearms. (Id. ¶¶ 12, 18.) The PSR listed the following prior felony convictions to support the armed career criminal enhancement: (1) a 1990 New Jersey conviction for possession of a controlled substance; (2) a 1991 New Jersey conviction for possession of a controlled substance with intent to distribute; (3) a 1995 New Jersey conviction for possession of a controlled substance; and (4) a 2000 federal conviction from the Eastern District of Pennsylvania for conspiracy to distribute crack, and three counts of distribution of crack. (Id. at ¶¶ 25-28.) The PSR recommended a criminal history category of VI, resulting in a guideline imprisonment range of 168 to 210 months. (Id. ¶ 45.) However, because the PSR recommended that he be classified as an armed career criminal, Turpin faced a statutory mandatory sentence of fifteen years to life imprisonment. (Id. at ¶ 44.) Turpin did not make any substantive objections to the PSR.

         On February 29, 2008, the court sentenced Turpin to 180 months' incarceration. Turpin did not appeal. On April 8, 2016, Turpin filed this § 2255 motion alleging: (1) that the district court imposed an unconstitutional sentence in light of Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), because he no longer qualifies as an armed career criminal; (2) the district court erred by permitting the over-representation of his criminal history; (3) the district court erred by failing to consider the factors set forth in 28 U.S.C. § 994(d) and (h); and (4) the district court erred by failing to order the Bureau of Prisons to adjust his sentence for time served in state custody for related crimes.

         The court appointed the Federal Public Defender's Office to represent Turpin and provide supplemental briefing, if necessary, in light of Johnson, pursuant to Standing Order 2015-5. The Federal Public Defender's Office declined to file any additional pleadings on Turpin's behalf. (Notice at 1, ECF No. 63.)

         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). Turpin 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. Timeliness of Petition

         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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