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United States v. Miller

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

July 12, 2017

UNITED STATES OF AMERICA
v.
JOHN ERIC MILLER, Defendant.

          John Eric Miller, Pro Se Defendant.

          OPINION

          James P. Jones United States District Judge

         The defendant, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 57. This matter is before me for preliminary review, pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings. After reviewing the record, I deny the motion as untimely filed.

         I.

         I entered Miller's criminal judgment on March 18, 2008, sentencing him to 181 months' incarceration after he pleaded guilty to conspiring to distribute 50 grams or more of a mixture of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(B) and § 846, and possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). Miller did not appeal.

         Miller commenced this collateral attack no earlier than May 16, 2017.[1] The court conditionally filed his Motion for Resentencing Pursuant to Rule 60(b)(6) and advised him that it intended to construe the motion as a § 2255 motion in accordance with Castro v. United States, 540 U.S. 375, 377 (2003). The court further advised Miller that a § 2255 motion appeared to be untimely and gave him the opportunity to explain why the court should consider it timely filed. Miller consented to having the Rule 60(b)(6) motion treated as a § 2255 motion by filing a completed form § 2255 motion. ECF No. 60. He now argues that I should consider the § 2255 motion timely filed because he commenced this collateral attack within one year of Dean v. United States, 137 S.Ct. 1170, 1174 (2017).[2]

         II.

         Federal inmates in custody may attack the validity of their federal sentences by filing motions pursuant to 28 U.S.C. §2255 within the one-year limitations period. This period begins to run from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which 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 date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28U.S.C. § 2255(f).

         Miller's criminal judgment became final in April 2008, when the time to appeal to the court of appeals expired. See Clay v. United States,537 U.S. 522, 525 (2003) (stating a conviction becomes final once the availability of direct review is exhausted). Accordingly, for purposes of § 2255(f)(1), Miller had until April 2009 to timely file a § 2255 ...


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