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United States v. Shifflett

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

June 21, 2017

UNITED STATES OF AMERICA,
v.
CECIL IRE SHIFFLETT, JR., Petitioner.

          MEMORANDUM OPINION

          Mchael F. Urbanski United States District Judge

         Cecil Ire Shifflett, 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, ECF No. 192, and a redundant motion to reduce sentence, ECF No. 185. The government filed a motion to dismiss, ECF No. 205, to which Shifflett responded, making this matter ripe for consideration. After review of the record, the court concludes that the government's motion to dismiss must be granted, and Shifflett's § 2255 motions must be dismissed.

         I.

         On February 6, 2014, a federal grand jury charged Shifflett in an eight-count indictment with various drug trafficking and firearm possession crimes. On July 30, 2014, Shifflett pleaded guilty, pursuant to a written plea agreement, to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846 ("Count One"), and to using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, a drug trafficking offense, in violation of 18 U.S.C. § 924(c) ("Count Three"). Plea Agree, at 2, ECF No. 72.

         The Presentence Investigation Report ("PSR") recommended, for Count One, a total offense level of 31, [1] a criminal history category of III, and an imprisonment range of 135 to 168 months. PSR ¶ 88, ECF No. 148. For Count Three, the mandatory minimum term was five years of imprisonment, to be imposed consecutively to any other term of imprisonment. Id.¶87.

         On February 4, 2015, the court entered judgment and sentenced Shifflett to 36 months for Count One and 60 months for Count Six, to run consecutively, for a total of 96 months' imprisonment. Judgment at 1, ECF Nos. 144, 146. Shifflett did not file an appeal.

         On June 13, 2016, Shifflett filed this § 2255 motion seeking a reduced sentence in light of Johnson v. United States, 135 S.Ct. 2551, 2563 (2015) ("Johnson ll").[2] The court appointed the Federal Public Defender's Office to represent Shifflett and provide supplemental briefing, if necessary, in light of Johnson II, pursuant to Standing Order 2015-5. ECF 186. The Federal Public Defender's Office declined .to file any additional pleadings on Shifflett's behalf and moved to withdraw, a motion which the court granted. Notice at 1, ECF No. 196, 197.

         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). Shifflett 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. Upon conviction of a federal offense, a prisoner 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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