United States District Court, W.D. Virginia, Roanoke Division
AMENDED MEMORANDUM OPINION 
E. Conrad United States District Judge
Defendant Lewis Leon Pendleton II, through counsel, has filed
a motion to vacate, set aside or correct sentence under 28
U.S.C. § 2255. He argues that following the decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), his
sentence for being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g), is unlawful because he
no longer has the requisite number of convictions to support
an enhanced sentence under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e). After careful
review of the record, and in light of recent precedent from
the United States Supreme Court and the United States Court
of Appeals for the Fourth Circuit, the court will grant
Pendleton's § 2255 motion.
September 6, 2007, a federal grand jury indicted Pendleton
for being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e) ("Count
One"), and for knowingly possessing a stolen firearm, in
violation of 18 U.S.C. §§ 922(j) ("Count
Two"). Pendleton pleaded guilty, pursuant to a written
plea agreement, to Count One. Plea Agree, at 2, ECF No. 28.
The plea agreement provided that Pendleton might be treated
as an armed career criminal and that his federal sentence
should be ordered to run concurrently with the sentence that
he was already serving in Virginia state court. Id.
Presentence Investigation Report ("PSR"), prepared
in anticipation of sentencing, recommended that Pendleton be
classified as an armed career criminal under the ACCA, 18
U.S.C. §§ 922(g) and 924(e). PSR ¶ 25, ECF No.
46. The PSR listed the following predicates to support the
ACCA enhancement: a 1980 Virginia conviction for burglary; a
1981 Virginia conviction for three counts of burglary; a 1985
California conviction for second degree burglary; and a 1986
Virginia conviction for burglary. Id. ¶¶
31, 32, 35, and 37. Because of the armed career criminal
designation, the PSR recommended an increased guideline
imprisonment range of 180 to 210 months. Id.
court adopted the PSR recommendation, and sentenced Pendleton
to a total of 180 months' incarceration, the statutory
mandatory minimum, and ordered that the sentence run
concurrently with Pendleton's Virginia state sentence.
Judgment at 2, ECF No. 36. Pendleton did not appeal.
Following his sentencing, Pendleton was returned to Virginia
custody until he completed his Virginia sentence in July
2015. He was then transferred to federal custody to serve the
remainder of his federal sentence.
August 16, 2017, Pendleton filed a § 2255 motion. ECF
No. 39. He argues that he is entitled to be resentenced
because, following Johnson, his Virginia burglary
convictions no longer support his enhanced sentence under the
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). Pendleton 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).
Statute of Limitations
petition under § 2255 must adhere to strict statute of
limitations requirements before a court may address the
merits of the arguments raised. Generally, a petitioner must
file a § 2255 motion within one year from the date on
which his judgment of conviction became final. 28 U.S.C.
§ 2255(f)(1). However, the statute allows for an
additional one-year limitations period from the date on which
the Supreme Court recognizes a new right made retroactively
applicable on collateral review. Id. at §
filed his § 2255 motion on August 16, 2017, more than
one year from the date of his final judgment in 2008. In
addition, he filed more than one year from the Supreme
Court's decision in Johnson, 135 S.Ct. 2551,
which issued on June 26, 2015. Pendleton argues that he has
good reason for failing to file within the applicable
deadlines and that the court should equitably toll the
limitations period, an argument the government does not
oppose. The court agrees.
tolling is appropriate in limited circumstances. It is
available in "those rare instances where-due to
circumstances external to the party's own conduct-it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result."
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000). Although granted sparingly, application of the
doctrine depends on the facts and circumstances of each case,
and "does not lend itself to bright-line rules."
Id. (internal quotation marks omitted).
Pendleton's case presents the type of extraordinary
circumstances that allows for equitable tolling.
time that the Johnson decision issued, Pendleton was
in a state facility, serving his concurrent federal and state
sentences. On August 3, 2015, this court entered a Standing
Order appointing the Federal Public Defender for the Western
District of Virginia ("FPD") to represent any
defendant who may qualify for federal habeas relief in light
of Johnson. Standing Order 2015-5 (W.D. Va. Aug. 3,
2015). The court obtained a list of defendants sentenced
under the ACCA from the Federal Bureau of Prisons
("BOP"). Pendleton was omitted from the list
because he was not in federal custody at that time. §
2255 Mot. Ex. 1, ECF No. 39-1. The BOP list was used by the
FPD to determine which defendants might be entitled to
relief. Neither the FPD nor the government realized that the
BOP list might exclude defendants, like Pendleton, who were
serving active ACCA sentences outside of a BOP facility.
Pendleton explained that he learned of the Johnson
decision only in the late spring or early summer of 2017,
when he heard other inmates in the prison library discussing
it. He then contacted the FPD, which filed the instant
petition on Pendleton's behalf. Because of the
court's Standing Order, the burden of identifying
potential grounds for a § 2255 motion, normally the