United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON UNITED STATES DISTRICT JUDGE
a federal inmate proceeding with counsel, submitted this
motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence. (ECF No. 41.) Petitioner argues that in
light of the Supreme Court's ruling in Johnson v.
United States, 135 S.Ct. 2551 (2015), his sentence under
the United States Sentencing Guidelines ("USSG") is
unconstitutional. (Mat 3.) The Government has responded.
(ECF No. 50.) Petitioner has replied. (ECF No. 56.) For the
reasons set forth below, the Court will deny Petitioner's
§ 2255 Motion as untimely.
was convicted of two counts of distribution of cocaine base.
(J. 1, ECF No. 26.) Petitioner's status as a career
offender had no bearing at his original sentencing. (PSR
Wrksht. D. at 1.) Although Petitioner's Presentence
Investigation Report designated him as a career offender,
Petitioner's offense level was driven by the quantity of
drugs he distributed, because that level was greater than his
career offender offense level. (Id.) Petitioner had
an Offense Level Total of 33 and was in Criminal History
Category VI, resulting in a guideline range of 235 to 293
months. (Id.) On June 23, 2003, Court
sentenced Petitioner to 285 months of imprisonment. (J. 2.)
On July 25, 2003, the United States Court of Appeals for the
Fourth Circuit dismissed his appeal. (ECFNo. 33.)
implementation of Amendment 782 to the USSG's drug
sentencing guidelines, Petitioner's designation as a
career offender became a controlling factor with respect to
Petitioner's sentence. (ECF No. 38.) Petitioner's
Offense Level Total based on the drug quantity dropped to 25,
while his Career Offender Offense Level was 31, resulting in
a guideline range of 188 to 235 months of imprisonment.
22, 2016, Petitioner, by counsel, filed his § 2255
Motion. (ECF No. 41.) In his § 2255 Motion, Petitioner
asserts that he is entitled to relief upon the following
Claim One: "On June 26, 2015, the Supreme Court issued
its decision in Johnson, 135 S.Ct. 2551. The Court
invalidated the ACCA's residual clause because it denied
fair notice and invited arbitrary enforcement and was
therefore void for vagueness under the Due Process Clause.
Under Johnson, the identical clause in the career
offender guideline is also void for vagueness. Thus, Mr.
Harris's prior second-degree assault and attempted
robbery convictions no longer qualify as 'crimes of
violence' and Mr. Harris is not a career offender."
(§ 2255 Mot. 5.)
further asserted: (1) USSG § 4B1.2(a)'s commentary
listing robbery as a crime of violence should be disregarded
in light of Johnson (§ 2255 Mot. 13-17), and
(2) his prior New York convictions for second-degree assault
and attempted first-degree robbery do not qualify as
"crime[s] of violence" under USSG's §
4B1.2(a)'s force clause, (id. at 17-24).
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