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United States v. Grubb

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

January 26, 2017

UNITED STATES OF AMERICA
v.
ROBERT WAYNE GRUBB, Petitioner.

          MEMORANDUM OPINION.

          Jackson L. Kiser Senior United States District Judge.

         Petitioner Robert Wayne Grubb, a federal inmate, filed a motion and amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, challenging his 318-month sentence following a guilty plea. Grubb asserts that he no longer qualifies as an armed career criminal under the Armed Career Criminal Act ("ACCA") because his predicate Virginia statutory burglary convictions and Virginia unlawful wounding conviction no longer support such a designation. The government filed a motion and amended motion to dismiss, and Grubb responded, making this matter ripe for disposition. I conclude that Grubb's petitions are untimely, and I grant the government's motions to dismiss.

         I.

         On July 19, 2000, a grand jury returned a fourteen-count Superseding Indictment against Grubb and various codefendants. Grubb was charged with: (1) conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846 ("Count One"); (2) four counts of possession of a firearm in connection with a drug trafficking offense, in violation of 18 U.S.C. §§ 924(c) and 2 ("Counts Seven, Eight, Ten and Thirteen"); and three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g), 924(e) and 2 (Counts Nine, Eleven and Fourteen"). Grubb pleaded guilty, pursuant to a written plea agreement, to Count One: conspiracy to possess with intent to distribute cocaine base, Counts Seven and Eight: possession of a firearm in connection with a drug trafficking offense, and Count Nine: being a felon in possession of a firearm. The government agreed to dismiss the remaining counts against him.

         A Presentence Investigation Report ("PSR") was created prior to sentencing. It recommended that Grubb be designated an armed career criminal pursuant to the ACCA. (PSR ¶ 30, ECF No. 149.) The PSR did not specify on which prior convictions it relied to support the career criminal designation, but Grubb had two prior convictions for Virginia burglary, (Id. ¶¶ 36, 42), one prior conviction for rape, (Ici ¶ 38), and one prior conviction for unlawful wounding, (Id. ¶ 43), all of which could have served as predicate offenses at the time of his sentencing. Because of the armed career criminal designation, he faced a total offense level of 30 and a criminal history category of VI, resulting in a sentencing range of 168 to 210 months' incarceration on Counts One and Nine. (IdL ¶ 103.) However, the statutory mandatory minimum sentence he faced on Count Nine, as an armed career criminal, was 180 months' imprisonment, increasing his sentencing range to 180 to 210 months. For Counts Seven and Eight, the PSR noted that Grubb faced a statutory mandatory minimum sentence of 300 months (60 months on Count Seven and a consecutive 240 months on Count Eight). (Id. ¶ 102.)

         On January 4, 2001, the government filed a motion for substantial assistance, requesting that Grubb receive a reduced sentence. (Id. ¶ 116.) On January 5, 2001, after finding Grubb to be an armed career criminal for purposes of Count Nine, I granted the government's motion for substantial assistance. Accordingly, I sentenced Grubb to 318 months imprisonment (12 months on Count One, 18 months on Count Nine, to run concurrently, and 60 months on Count Seven and 240 months on Count Eight, to run consecutive to Counts One and Nine, and each other).

         Grubb appealed to the Fourth Circuit, arguing that I accepted his guilty plea and denied his motion to withdraw his guilty plea in error, and did not sentence him in accordance with the guidelines. The Fourth Circuit affirmed Grubb's sentence, finding no error. United States v. Grubb. 28 F.App'x 223 (4th Cir. 2002). Grubb filed a § 2255 motion, alleging claims of ineffective assistance of counsel, among others. I granted the government's motion to dismiss after concluding that he did not raise any meritorious claims. (Opinion at 16, ECF No. 39, 7:03-cv-00236).

         Grubb obtained authorization from the Fourth Circuit, and filed this successive § 2255 motion on June 27, 2016. He argues that following the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015), his Virginia statutory burglary convictions as well as his conviction for unlawful wounding can no longer support his armed career criminal status under the ACCA. The court appointed the Federal Public Defender's Office to represent Grubb and it has provided briefing.

         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). However, because Grubb previously filed a § 2255 motion, he must establish that his current petition contains "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Id. at § 2255(f)(2). Grubb 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 ...

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