United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
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.
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.)
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). On June 3, 2003, the United States Court
of Appeals for the Fourth Circuit affirmed Johnson's
convictions and sentence. Id. at 483.
March 9, 2016, Johnson placed the present § 2255 Motion
in the prison mail system for mailing to this Court. (§
2255 Mot. 12.) 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.)
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)
(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
(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