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United States v. Givens

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

May 4, 2017

UNITED STATES OF AMERICA
v.
GREGORY MICHAEL GIVENS, Petitioner.

          MEMORANDUM OPINION

          John A. Gibney, Jr United States District Judge

         Gregory 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.

          I.PROCEDURAL HISTORY

         On July 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.)

         On 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.

         On May 11, 2016, Givens placed the present § 2255 Motion in the prison mail system for mailing to this Court. (§ 2255 Mot. 12.)[1] 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:

         Claim One: Givens's convictions under 18 U.S.C. § 924(c) are unconstitutional in light of Johnson.

         Claim Two: Givens no longer qualifies as a career offender in light of Johnson.

          II. ANALYSIS

         As 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, ...


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