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United States v. Hogan

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

March 8, 2018

UNITED STATES OF AMERICA,
v.
STEWART THOMAS HOGAN, Defendant.

          2255 MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE.

         Stewart Thomas Hogan, 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). ECF No. 35. The government agrees that Hogan's § 2255 motion should be granted and that he is entitled to relief. ECF No. 48. After careful review of the record and applicable case law, I agree with the parties and will grant Hogan's § 2255 motion.

         I.

         On July 19, 2007, a federal grand jury indicted Hogan for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Hogan pleaded guilty, and a Presentence Investigation Report (“PSR”) was prepared in anticipation of sentencing. The PSR recommended that Hogan be classified as an armed career criminal under the ACCA, 18 U.S.C. §§ 922(g) and 924(e). PSR ¶ 20, ECF No. 49. The PSR based Hogan's armed career criminal designation on the fact that he had six prior felony convictions, four convictions for Virginia burglary, one conviction for Virginia unlawful wounding, and one conviction for Virginia felonious assault. Id. ¶¶ 26, 29, 34, 35, 36, and 42. Because of the armed career criminal designation, the PSR recommended an increased guideline imprisonment range of 188 to 235 months. Id. ¶ 67.

         The court adopted the PSR recommendation, and sentenced Hogan to a total of 196 months' incarceration, and ordered that the sentence run concurrently with Hogan's Virginia state sentence. Judgment at 2, ECF No. 26. Hogan did not appeal.

         In September 2015, pursuant to Standing Order 2015-5, the Federal Public Defender's Service for the Western District of Virginia was appointed to represent Hogan with regard to any claim he might have under Johnson. ECF No. 31. On April 25, 2016, Hogan sent a letter to the court asking whether the Johnson opinion affected his case because he was sentenced as an armed career criminal. ECF No. 33. Due to an error, the Federal Public Defender did not file a § 2255 petition on Hogan's behalf until April 25, 2017. ECF No. 39. Defense counsel filed an amended § 2255 on May 30, 2017.

         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). Hogan 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. Statute of Limitations

         A 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 § 2255(f)(3).

         On April 25, 2016, Hogan filed a letter with the court asking whether Johnson affected his case. He then filed his § 2255 motion on April 25, 2017. The § 2255 motion was filed more than one year from the date of his amended judgment in 2011. However, the letter that Hogan filed with the court inquiring about the applicability of Johnson to his case was filed less than a year after the Supreme Court issued its decision in Johnson, 135 S.Ct. 2551, on June 26, 2015. Accordingly, the court will construe Hogan's § 2255 petition as timely filed.

         Moreover, the government agrees that Hogan is entitled to relief and has not asserted a statute of limitations defense, thereby implicitly waiving it. The government's decision not to assert a procedural bar may not be disregarded by this court. See Wood v. Milyard, 566 U.S. 463, 466 (2012) (“A court is not at liberty, we have cautioned, to bypass, override, or excuse [the government's] deliberate waiver of a limitations defense.”); Day v. McDough, 547 U.S. 198, 202 (2006) (noting that because a statute of limitations defense is not jurisdictional, courts are not obligated to consider sua sponte a time bar that has been deliberately waived); see also Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999) (concluding that the government must argue procedural default as an affirmative defense). Therefore, I turn to the merits of Hogan's § 2255 petition.

         B. Hogan's ACCA Sentence

         1. The ACCA Enhanced ...


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