United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia for United States; Reginald Darwin Morton, Pro Se
P. Jones United States District Judge
defendant, Reginald Darwin Morton, has filed a Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255, challenging his conviction. The United States
has filed a Motion to Dismiss and Morton has responded. After
reviewing the record and considering the arguments of the
parties, I will grant the United States' Motion to
Dismiss and deny Morton's § 2255 motion as untimely.
found Morton guilty of drug-related charges on May 29, 2009.
I entered his criminal judgment on September 18, 2009, and
sentenced him to 240 months' incarceration. J. 2, ECF No.
2267. Morton appealed and the court of appeals affirmed his
conviction but remanded for resentencing based on United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011).
United States v. Morton, 443 F. App'x 775, 781
(4th Cir. 2011) (unpublished). On March 19, 2012, I
resentenced Morton to 210 months imprisonment. Am. J. 2, ECF
No. 2789. Morton again appealed, and the Fourth Circuit
affirmed his sentence on December 17, 2012. United States
v. Morton, 499 F. App'x 310, (4th Cir. 2012)
then filed a number of additional motions, including a Motion
to Reduce Sentence, ECF No. 2960, a Motion for a New Trial,
ECF No. 3195, and a Motion to Recuse, ECF No. 3196, all of
which I denied, ECF No. 2962, 3199. Morton appealed the
denial of his Motion for a New Trial and Motion to Recuse,
but the Fourth Circuit affirmed, United States v.
Morton, 589 F. App'x 231, 231 (4th Cir. 2015)
(unpublished), and denied a Motion for En Banc Review, ECF
No. 3248. Finally, Morton filed two additional motions to
reduce his sentence, ECF Nos. 3269, 3276, which I denied on
June 3, 2015, ECF No. 3289.
October 7, 2016, Morton filed the present § 2255 motion
arguing that he is actually innocent of the drug conspiracy
charge and that he received ineffective assistance because
counsel failed to present exculpatory evidence.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his or her 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). Morton 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).
may consider the merits of a defendant's § 2255
motion only if it is timely filed. A one-year limitations
period exists, starting from the latest of the following
(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
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the