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United States v. Jackson

United States District Court, W.D. Virginia, Charlottesville Division

May 10, 2017

UNITED STATES OF AMERICA
v.
JEFFREY STERLING DEANE, JR. Petitioner.

          2255 MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE.

         Jeffrey 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.

         I.

         On 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.

         The 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.

         On 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.

         On June 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.

         II.

         To 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).

         A. Timeliness of Petition

         A 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 ...

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