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United States v. Lowery

United States District Court, E.D. Virginia, Richmond Division

March 20, 2017

UNITED STATES OF AMERICA
v.
DAVID DARNELL LOWERY, Petitioner.

          MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255 MOTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE

         David Darnell Lowery, a Virginia inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his federal sentence ("§ 2255 Motion, " ECF No. 90). On October 20, 2016, the Government filed a Motion for Leave to File Out of Time a Response to Defendant's Motion to Vacate Pursuant to 28 U.S.C. § 2255 ("Motion for Leave to File, " ECF No. 97), as well as its Response (ECF No. 98). Because Lowery is not prejudiced by the Government's late response, the Motion for Leave to File (ECF No. 97) will be granted. In its Response, the Government asserts, inter alia, that Lowery's § 2255 Motion is barred by the statute of limitations. (Gov't's Resp. 3-6.) For the reasons set forth below, Lowery's § 2255 Motion will be dismissed as untimely.

         I. PROCEDURAL HISTORY

         On August 16, 2011, a grand jury charged Lowery with one count of conspiracy to obstruct, delay, and affect commerce by robbery, in violation of 18 U.S.C. § 1951(a) (Count One), and one count of using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two). (Indictment 1-7, ECF No. 1.) On November 28, 2011, Lowery entered into a Plea Agreement and pled guilty to Counts One and Two. (Plea Agreement ¶ 1, ECF No. 28.) On February 27, 2012, the Court entered judgment against Lowery and sentenced him to a total of 294 months of imprisonment. (J. 2, ECF No. 63.) The Court sentenced Lowery to 210 months on Count One and 84 months on Count Two, to be served consecutively, (Id.) The Court also directed that Lowery5s sentence "be served consecutively to the sentence imposed by the Fredericksburg Circuit Court on August 17, 2011." (Id.) Lowery did not appeal.

         Lowery filed the present § 2255 Motion on July 7, 2016.[1] (§ 2255 Mot. 14.)[2] In his § 2255 Motion, Lowery raises the following claims for relief:

Claim One: "The Petitioner is actually innocent of his sentence in Count #2 of Indictment, where he pled guilty to a count that charges multiple [offenses]." (Mat4.)
Claim Two: "Trial counsel was ineffective for failure to challenge the duplicity in Count #2 of my Indictment." (Id. at 6.)

         II. ANALYSIS

         Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2255 to establish a one-year period of limitation for the filing of a § 2255 Motion. Specifically, 28 U.S.C. § 2255(f) now reads:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which 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 date on which 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 date on which the facts supporting the claim or claims presented could have been discovered through the ...

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