United States District Court, W.D. Virginia, Charlottesville Division
2255 MEMORANDUM OPINION
K. MOON UNITED STATES DISTRICT JUDGE.
Sterling Deane, Jr., a federal inmate proceeding pro
se, filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. The government
filed a motion to dismiss, and the time within which Deane
had to respond has expired, making this matter ripe for
consideration. After reviewing the record, I conclude that
the government's motion to dismiss must be granted and
Deane's § 2255 motion must be dismissed as untimely.
September 22, 2010, a federal grand jury charged Deane in a
ten-count indictment with conspiracy to distribute five
kilograms of cocaine and 50 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)
and 846 (“Count One”); and brandishing and
discharging a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)
(“Count Four”), among other counts. On April 1,
2011, Deane pleaded guilty, pursuant to a written plea
agreement, to Counts One and Four. Plea Agree. at 1, ECF No.
37. The government agreed to dismiss the remaining counts.
Presentence Investigation Report (“PSR”)
recommended a total offense level of 40 for Count One because
a victim had been killed under circumstances that constituted
murder under U.S.S.G. § 2A1.1, a criminal history
category of VI, and an imprisonment range of 360 months to
life. PSR ¶¶ 19, 64, ECF No. 97. The PSR also
recommended a statutory 120 month consecutive sentence on
Count Four. Id. ¶ 66. Deane did not make any
objections to the PSR.
August 31, 2011, I sentenced Deane to 120 months on each
count, to run consecutively, for a total of 240 months'
imprisonment. Judgment at 2, ECF No. 98. In addition, I
ordered that Deane's sentence run concurrent to a
98-month undischarged sentence resulting from a separate
conspiracy drug conviction, United States v. Deane,
No. 3:08-cr-00051-2. Deane did not appeal.
13, 2016, Deane filed this § 2255 motion alleging that I
imposed an unconstitutional sentence in light of Johnson
v. United States, 135 S.Ct. 2551, 2563 (2015). I
appointed the Federal Public Defender's Office to
represent Deane and provide supplemental briefing, if
necessary, in light of Johnson, pursuant to Standing
Order 2015-5. The Federal Public Defender's Office
declined to file any additional pleadings on Deane's
behalf and moved to withdraw, a motion which I granted.
Notice at 1, ECF No. 169.
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 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). Deane 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).
Timeliness of Petition
petition under § 2255 must adhere to strict statute of
limitations requirements. 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 making a
motion by such governmental action;
(3) the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively ...