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United States v. Johnson

United States District Court, E.D. Virginia, Richmond Division

July 19, 2017

UNITED STATES OF AMERICA
v.
MARCUS JOHNSON, Petitioner.

          MEMORANDUM OPINION

          M. Hannah Lauck United States District Judge

         Marcus Johnson, a federal inmate, filed this pro se motion pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion, " ECF No. 623). The Government has filed a Motion to Dismiss, asserting that Johnson's § 2255 Motion is untimely filed. (ECF No. 645.) Johnson has filed a Response. (ECF No. 647.) The Court subsequently appointed counsel to represent Johnson. (ECF No. 648, at 1.) After reviewing the record, counsel has submitted a Motion to Withdraw because he "cannot identify any non-frivolous arguments to make on [Johnson's] behalf with respect to his pending pro se § 2255 motion." (ECF No. 655, at 2.) For the reasons set forth below, the Motion to Dismiss will be GRANTED, and Johnson's § 2255 Motion will be DISMISSED as barred by the statute of limitations. Counsel's Motion to Withdraw will be GRANTED.

         I. Procedural History

         On November 20, 2001, a grand jury charged Johnson with one count of violating the Racketeering Influenced and Corrupt Organizations Act, in violation of 18 U.S.C. § 1962(c) (Count One), and one count of conspiracy to distribute fifty grams or more of a mixture and substance which contained a detectable amount of cocaine base, in violation of 21 U.S.C. § 846 (Count Two). (Superseding Indictment 1-22, ECF No. 67.) Counts One and Two referenced criminal activity that occurred from 1992 until 2001. (See, e.g., Superseding Indictment at 5-6, 21-22; Pre-Sentence Investigation Report ("PSR") ¶ 22.) During the majority of this time, Johnson was a juvenile. (See PSR ¶ 76.)

         On May 8, 2002, a jury found Johnson guilty of Counts One and Two. (ECF No. 231, at 1-5.) On September 5, 2002, the Court entered judgment against Johnson and sentenced him to life imprisonment on both counts, to run concurrently. (J. 2, ECF No. 312.) On September 16, 2002, the Court entered an Amended Judgment reflecting that Johnson's sentence would run consecutively to his undischarged state sentence. (Am. J. 2, ECF No. 318.) Johnson appealed, arguing that "out-of-court statements made by various [Fulton Hill Hustlers] should have been excluded as hearsay." United States v. Irving, 66 F.App'x 480, 482 (4th Cir. 2003).[1] On June 3, 2003, the United States Court of Appeals for the Fourth Circuit affirmed Johnson's convictions and sentence. Id. at 483.

         On March 9, 2016, Johnson placed the present § 2255 Motion in the prison mail system for mailing to this Court. (§ 2255 Mot. 12.)[2] The Court deems the § 2255 Motion filed as of that date. See Houston v. Lack, 487 U.S. 266, 276 (1988). In his § 2255 Motion, Johnson raises the following claim for relief:

Claim One: "Petitioner's sentence was in violation of the Eighth Amendment for life without parole for juvenile offenders, under Miller v. Alabama, [567 U.S. 460 (2012) and] Montgomery v. Louisiana, [136 S.Ct. 718 (2016)]." (§ 2255 Mot. 4.)

         II. Analysis

         Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2255 to establish a one-year period of limitation for the filing of a § 2255 Motion. Specifically, 28 U.S.C. § 2255(f) now reads:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall 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 ...

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