United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr United States District Judge
Michael Givens, a federal inmate proceeding pro se,
brings this motion pursuant to 28 U.S.C. § 2255
("§ 2255 Motion, " ECF No. 62). The Government
has filed a Motion to Dismiss, asserting that Givens's
§ 2255 Motion is barred by the statute of limitations.
(ECF No. 67.) Givens has filed a Response. (ECF No. 68.) For
the reasons set forth below, Givens's § 2255 Motion
will be denied as meritless.
20, 1999, Givens pled guilty to bank robbery, in violation of
18 U.S.C. § 2113(a) & (d), as charged in Count One
of the Indictment against him; and two counts of use of a
firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c), as charged in Counts Two and Four of the
Indictment against him. (See Pre-Sentence
Investigation Report ("PSR") ¶ 13, ECF No.
61.) Prior to sentencing, a Probation Officer determined that
Givens was a career offender, stating:
The defendant qualifies for a sentence enhancement under the
career offender provisions as defined in [United States
Sentencing Guidelines] § 4B1.1. As a result of this
enhancement, the defendant's offense level, after an
adjustment for acceptance of responsibility, is 31 and his
criminal history category is VI. The defendant was at least
18 years old at the time he committed the instant offense of
conviction. The instant offense is Bank Robbery which is a
felony and a crime of violence. The defendant has one prior
felony conviction of a crime of violence (Robbery) and he has
one prior felony conviction for a controlled substance
offense (Possession with Intent to Distribute Cocaine) which
received separate criminal history points.
(Id. ¶ 54.)
September 9, 1999, the Court entered judgment and sentenced
Givens to 188 months of incarceration for Count One, 60
months of incarceration for Count Two, to be served
consecutively, and 240 months of incarceration for Count
Four, to be served concurrently. (See ECF No. 39.)
On September 21, 1999, the Court entered an Order amending
the judgment to reflect that the 240 months imposed for Count
Four would run consecutively to the other terms imposed.
Givens did not appeal.
11, 2016, Givens placed the present § 2255 Motion in the
prison mail system for mailing to this Court. (§ 2255
Mot. 12.) The Court deems the § 2255 Motion
filed as of that date. See Houston v. Lack, 487 U.S.
266, 276 (1988). In his § 2255 Motion, Givens contends
that his convictions under 18 U.S.C. § 924(c) are
unconstitutional pursuant to the Supreme Court's recent
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). (§ 2255 Mot. 4.) He states:
I pled guilty to 2 counts [of §] 924(c) [and] received
consecutive mandatory 60 and 240 months. I also was
enhanced as a violent offender/career offender under [§]
4B1.1 increasing me to 188 months and level 31 [and] criminal
history category VI based on the instant case plus claimed
prior robbery [and] possession with intent. The sentence
[and] facts were arbitrary [and] discriminatory [and] the
sentencing and statues are vague.
(Id.) The Court construes Givens's § 2255
Motion to raise the following claims for relief:
One: Givens's convictions under 18 U.S.C. § 924(c)
are unconstitutional in light of Johnson.
Two: Givens no longer qualifies as a career offender in light
noted above, the Government asserts that Givens's §
2255 Motion should be dismissed because it is barred by the
applicable statute of limitations. Givens's § 2255
Motion, however, is readily dismissed for lack of merit.
Accordingly, in the interests of judicial efficiency, ...