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United States v. Harris

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

December 21, 2017

UNITED STATES OF AMERICA
v.
DEDRIC DORNELL HARRIS, Petitioner.

          MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255 MOTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE

         Petitioner, 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.[1] (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.

         I. PROCEDURAL HISTORY

         Petitioner 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.[2] (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.)

         After 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. (Id.)

         On June 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:

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.)

         Petitioner 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).

         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 ...

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