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.

Whitt v. United States

United States District Court, E.D. Virginia, Newport News Division

April 7, 2017

JASON WHITT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION & ORDER

          Raymond A. Jackson, United stales District Judge

         This matter is before the Court on Jason Whitt's ("Petitioner") Motion To Receive Court Records and To Address 2-Level Gun Enhancement. Petitioner seeks to attack his sentence on the grounds that the two level enhancement for a gun is error and that this enhancement in his sentence should be vacated. Because Petitioner seeks to collaterally attack his conviction, the Court intends to construe Petitioner's motion under 28 U.S.C. § 2255 (Supp. IV 1998), as a Motion to Vacate, Set Aside and/or Correct Sentence. Accordingly, Petitioner is ADVISED of the following procedural matters and ORDERED to respond forthwith.

         Although Petitioner labels his petition as one brought under Section 2255, which this Court would be authorized to consider, judicial review of the type of claim he raises in the motion may only be sought under 28 U.S.C. § 2255. Section 2255 provides that:

[a]n application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255. Based upon this language, courts have held that section 2255 is a federal prisoner's exclusive remedy for collaterally attacking the imposition of his sentence, unless the remedy is "inadequate or ineffective." Swain v. Pressley, 430 U.S. 372, 377-78 (1977); Baker v. Sheriff of Santa Fe County, 477 F.2d 118, 119 (10th Cir. 1973); Whiting v. Hunter, 204 F.2d 471, 472 (10th Cir. 1953). That relief is unavailable under § 2255, however, does not necessarily render it "inadequate or ineffective." In re Jones, 226 F.3d 333 (4th Cir. 2000).

         Because Petitioner seeks to attack his sentence on the grounds that the two point enhancement for a gun was applied, the Court intends to construe Petitioner's motion under 28 U.S.C. § 2255 (Supp. IV 1998). In accordance with United States of America v. Emmanuel, 288 F.3d 644 (4th Cir. 2002), the Court ADVISES Petitioner of certain legal consequences resulting from the Court's construing Petitioner's motion as § 2255 habeas petition.

         In 1996, Congress amended the law governing § 2255 motions as a part of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2255 (Supp. IV 1998). The AEDPA contains a one-year limitations period and a prohibition against second or successive habeas petitions. Outlined below is the applicable law for these restrictions.

         A. Statute of Limitations

         The AEDPA provides for a one-year limitations period within which a petitioner may file a § 2255 habeas petition. Section 2255 provides in relevant part that:

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 ...

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.