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United States v. Reep

United States District Court, E.D. Virginia, Newport News Division

June 30, 2017

RODNEY REEP, Petitioner. Crim. No. 2:02cr217-9


          Raymond A. Jackson United States District Judge


         Rodney Reep ("Petitioner") has submitted a motion pursuant to Title 28, United States Code, Section 2255 to Vacate Sentence by a Person in Federal Custody ("2255 Motion"). Having thoroughly reviewed the Parties' filings in this case, this Court finds this matter is ripe for judicial determination. For the reasons set forth below, Petitioner's 2255 motion is DENIED.


         On March 6, 2003, the United States Attorney filed a Superseding Indictment in the Eastern District of Virginia against Petitioner on nine counts. ECF No. 1. On July 18, 2003, Petitioner was convicted on all nine counts. Count One charged Petitioner with Conspiracy to Distribute and Possess with Intent to Distribute Cocaine, Cocaine Base and Heroin in violation of Title 21 U.S.C. § 846. ECF No. 33. Count Sixteen, Seventeen, Eighteen, Twenty-One, Twenty-Five, Twenty-Seven, and Twenty-Eight charged Petitioner with Possession with Intent to Distribute varying quantities of a Mixture and Substance Containing Cocaine in violation of Title 21 U.S.C. §§ 841(a)(1). Id. Count Twenty-Nine charged Petitioner with Felon in Possession of Firearm in Affecting Commerce Ammunition in violation of Title 18 U.S.C. § 922(g)(1). Id.

         At sentencing, in light of Petitioner's prior Virginia convictions, the Court found that Petitioner is a "career offender" under the United States Sentencing Guidelines ("Guidelines") §§ 4Bl.l(a) and 4B 1.2(a). Petitioner was sentenced to 360 months imprisonment. ECF No. 49.

         On January 25, 2008, Petitioner filed his first 2255 Motion to vacate his sentence. ECF No. 226. Petitioner's first 2255 Motion was denied on June, 23, 2009. ECF No. 284. On August 24, 2009, Petitioner filed a notice of appeal for his first 2255 motion. ECF No. 294. On August 5, 2010, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") affirmed the District Court's judgment on the 2255 Motion. ECF No. 314. On July 08, 2016, Petitioner filed a motion pursuant to 28 U.S.C. § 2255(h) requesting authorization to file a second 2255 Motion. ECF No. 430. On July 8, 2016, the Fourth Circuit granted authorization to Petitioner to file a "second" 2255 Motion under Title 28 U.S.C. § 2255(h) because he made a prima facie case showing that the new rule of constitutional law announced in Johnson v. United States, 135 S.Ct. 2551 (2015), made retroactively applicable to cases on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016), may apply to Petitioner's case. Id. On July 8, 2016, Petitioner filed the instant motion. ECF No. 431. On March 27, 2017, Respondent filed their response to the instant motion. ECF No. 447. On April 28, 2017, Petitioner filed his reply. ECF No. 454.


         When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 2255 motion. United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs post-conviction relief for federal prisoners. It provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Motions under § 2255 "will not be allowed to do service for an appeal." Simal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).

         When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Whether a hearing is mandatory for a § 2255 Motion and whether petitioner's presence is required at the hearing is within the district court's sound discretion and is reviewed for abuse of discretion. Raines ...

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