United States District Court, W.D. Virginia, Abingdon Division
Eric Miller, Pro Se Defendant.
P. Jones United States District Judge
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
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.
commenced this collateral attack no earlier than May 16,
2017. 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
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
(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
(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).
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 ...