United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
S. DAVIS UNITED STATES DISTRICT JUDGE
matter is before the Court on Marlon Pettaway's
("Petitioner") Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No.
62. Petitioner's § 2255 motion advances one claim
challenging the constitutionality of his sentence and one
claim asserting that he is actually innocent of certain
charges. For the reasons set forth below, Petitioner's
§ 2255 motion is DISMISSED as untimely,
and is alternatively DENIED on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
January 29, 2007, at the conclusion of a bench trial in this
Court, Petitioner was convicted of multiple felony offenses,
including a narcotics trafficking conspiracy, a
"continuing criminal enterprise, " and various
associated firearms offenses, including three convictions
under 18 U.S.C. § 924(c). ECF No. 37. On April 25, 2007,
Petitioner was sentenced to a term of imprisonment of
"Life, plus fifty-seven years." Id.
Petitioner filed a timely appeal, ECF No. 38, and on July 3,
2008, the United States Court of Appeals for the Fourth
Circuit affirmed Petitioner's convictions. United
States v. Pettaway, 283 Fed.Appx. 109, 110 (4th Cir.
2008) . Petitioner did not file a petition for writ of
certiorari, nor did he file a § 2255 motion in the wake
of the Fourth Circuit's ruling.
4, 2017, approximately nine years after the Fourth Circuit
ruled on Petitioner's direct appeal, Petitioner filed the
instant § 2255 motion. Petitioner's motion alleges
that his § 924(c) firearm in furtherance sentences are
unconstitutional and that Petitioner is actually innocent of
such offenses. ECF No. 62. The Government filed a response
seeking dismissal of Petitioner's § 2255 motion,
arguing both that Petitioner's motion is untimely and
that it fails on the merits. ECF No. 64. Petitioner filed a
reply brief reasserting the timeliness of his § 2255
motion based on Petitioner's purported "actual
innocence" and because his § 2255 motion was filed
within one year of the Supreme Court's decision in
Mathis v. United States, 136 S.Ct. 2243 (2016).
STANDARD OF REVIEW
§ 2255 motion is, in essence, a statutory federal habeas
corpus action that collaterally attacks a sentence or
conviction through the filing of a new proceeding, as
contrasted with a direct appeal. United States v.
Hadden, 475 F.3d 652, 663 (4th Cir. 2007) . To obtain
§ 2255 relief, a petitioner bears the burden of proving
that his sentence or conviction was "imposed in
violation of the Constitution or laws of the United States,
" that the district court "was without jurisdiction
to impose such sentence, " that the sentence exceeds
"the maximum authorized by law, " or that the
sentence or conviction is "otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). A
petitioner must prove the asserted grounds for relief by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
existence of the right to pursue a collateral attack does not
displace a direct appeal as the "usual and customary
method of correcting trial errors." United States v.
Allgood, 48 F.Supp.2d 554, 558 (E.D. Va. 1999) . To the
contrary, with limited exceptions, a petitioner advancing new
claims asserted for the first time in a § 2255 motion
"must clear a significantly higher hurdle than would
exist on direct appeal." United States v.
Frady, 456 U.S. 152, 166 (1982). Such "higher
hurdle" applies because, once a Petitioner's
opportunity to pursue a direct appeal has been waived or
exhausted, there is "a final judgment [that] commands
respect." Id. at 164-65. Accordingly, the
doctrine of procedural default generally prevents a district
court from reaching the merits of § 2255 claims that
were not raised on direct appeal unless a petitioner can
show: (1) "cause" excusing the failure to directly
appeal such alleged errors; and (2) "actual prejudice
resulting from the errors of which he complains."
United States v. Mikalajunas, 186 F.3d 490, 492-93
(4th Cir. 1999).
and the President have established a one-year limitations
period within which a petitioner must file a § 2255
motion. 28 U.S.C. § 2255(f). In most cases, the
limitations period expires one year after the criminal
judgment becomes final. Id
Timeliness of § 2255 motion
indicated immediately above, a federal habeas petitioner is
required to file a § 2255 motion within a one-year
limitations period. Id. Such period begins running
on the latest of the following four dates: (1) "the date
on which the judgment of conviction becomes final"; (2)
the date on which certain government-created impediments to
filing are removed; (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
facts supporting the claim could be discovered through due
diligence. Id. (emphasis added). Alternatively, as
recognized by the Supreme Court in McQuiggin v.
Perkins, 569 U.S. 383, 399 (2013), a Petitioner
advancing a "convincing" actual-innocence claim may
invoke "the miscarriage of justice exception" to
the limitations period set forth in § 2255(f).
Petitioner's § 2255 motion was filed many years
after his conviction and sentence became final, and
Petitioner fails to allege a Government impediment to filing
a § 2255 motion or any newly discovered facts.
Accordingly, Petitioner's motion can only be considered
timely if: (1) it is predicated on a right newly recognized
by the Supreme Court that has been made retroactively
applicable to cases on collateral review; or (2) Petitioner
makes a "convincing" showing of actual innocence.
argued by the Government in its motion to dismiss, Petitioner
fails to establish either that his § 2255 motion is
predicated on a newly recognized retroactive right or that he
is actually innocent. First, "Petitioner cannot rely on
the holding in Mathis to overcome the limitations
bar in section 2255(f)(3)" because Mathis did
not establish a new retroactive rule. Haley v. United
States, No. 2:12crl49, 2017 WL 2297022, at *3-*4 (E.D.
Va. May 24, 2017) (citing cases) . Second, "even if
Mathis stated a new rule that was retroactively
applicable" to § 2255 cases, its holding clearly
does not apply to Petitioner's case because the "the
issue before the Supreme Court, in Mathis, pertained
to the [classification of prior felonies under the] Armed
Career Criminal Act ("ACCA"), " and here,
Petitioner was not sentenced under the ACCA (nor was
his sentence enhanced under the Guideline "career
offender" provisions).Id. Third,
Petitioner's citations to Lynch v. Dimaya, 137
S.Ct. 31 (2016) and Dean v. United States, 137 S.Ct.
1170 (2017) are misplaced, as neither case addresses an issue
that can render Petitioner's motion timely. Fourth,
Petitioner's citation to Rosemond v. United
States, 134 S.Ct. 1240 (2014) fails to demonstrate that
he is actually innocent of the § 924(c) offenses.