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United States v. Smith

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

August 23, 2017

UNITED STATES OF AMERICA
v.
JAMES ALEXANDER SMITH, Petitioner.

          MEMORANDUM OPINION

          MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.

         James Alexander Smith, a federal inmate proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government has filed a motion to dismiss, and the time allotted for Smith to respond has elapsed, making this matter ripe for consideration. After reviewing the record, the court concludes that the government's motion to dismiss must be granted and Smith's § 2255 motion must be dismissed as untimely.

         I.

         On January 17, 2013, a federal grand jury charged Smith with conspiracy to manufacture and attempted to manufacture 50 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 846 ("Count One"), various counts related to the manufacture of methamphetamine, ("Counts Two to Four); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) ("Count Five").

         Smith pleaded guilty to Counts One and Five, pursuant to a written plea agreement. The Presentence Investigation Report ('TSR") recommended a total offense level of 29 based on the methamphetamine drug weight at issue, and a criminal history category of III, resulting in a guideline imprisonment range of 108 to 135 months' incarceration for Count One. PSR ¶ 63, ECF No. 46. Count Five required a statutory mandatory minimum of 60 months' incarceration to be served consecutively to the term imposed for Count One. Id. ¶ 62. The court sentenced Smith to a total of 120 months' imprisonment, consisting of a term of 60 months on Count One and 60 months on Count Two, to be served consecutively. Smith did not appeal. Smith filed this § 2255 motion alleging that the district court imposed an unconstitutional sentence in light of Johnson v. United States, 135 S.Ct. 2551, 2563 (2015).

         The court appointed the Federal Public Defender's Office to represent Smith and provide supplemental briefing, if necessary, in light of Johnson, pursuant to Standing Order 2015-5. Subsequently, the Federal Public Defender's Office declined to file additional pleadings and filed a motion to withdraw as counsel, which the court granted. Notice of No Additional Filing at 1, ECF No. 70; Order, ECF No. 71.

         II.

         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Smith bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         A petition under § 2255 must adhere to strict statute of limitations requirements. A person convicted of a federal offense must file a § 2255 motion within one year of the latest date on which:

(1) the judgment of conviction becomes final;
(2) 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 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 facts supporting the claim or claims presented could have been discovered through the ...

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