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United States v. Graham

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

October 30, 2018

UNITED STATES OF AMERICA
v.
DAVID GRAHAM, Petitioner.

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

          Henry E. Hudson Senior United States District Judge

         Petitioner, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion," ECF No. 51).[1] The Government has moved to dismiss, asserting that Petitioner's § 2255 Motion is barred by the statute of limitations. (ECF No. 55.) For the reasons set forth below, Petitioner's § 2255 Motion will be denied as barred by the statute of limitations.

         I. PROCEDURAL HISTORY

         Petitioner pled guilty to possession with intent to distribute fifty grams or more of cocaine base (Count One) and possession of a firearm in furtherance of a drug trafficking crime (Count Two). (ECF No. 6, at 1-2.) On January 29, 2004, the Court sentenced Petitioner to 181 months of imprisonment. (ECF No. 15, at 2.)

         On September 19, 2011, Petitioner was released from the above sentence and began to serve his term of supervised release. (ECF No. 55, at 2.) Shortly thereafter, Petitioner was arrested on new drug charges. (Id.) Petitioner pled guilty to the new charges and to violating the terms of his supervised release. (Id.) The Court sentenced Petitioner to 87 months on the new charges. (Id.) With respect to the term of supervised release, the Court sentenced Petitioner to 57 months of imprisonment to be served consecutive to the 87-month sentence imposed in No. 3:1 l-CR-293-02. (ECF No. 40, at 1.) The Court entered an order reflecting that decision on July 17, 2012. (Id.) Petitioner did not appeal at that time.

         On November 22, 2016, Petitioner filed a, pro se notice of appeal. (ECF No. 41.) On March 31, 2017, the United States Court of Appeals for the Fourth Circuit dismissed Petitioner's untimely appeal. (ECF No. 46.) On December 4, 2017, the Supreme Court of the United States denied Petitioner's petition for a writ of certiorari. (ECF No. 52.)

         On November 13, 2017, Petitioner submitted his § 2255 Motion to prison officials for mailing to this Court. (ECF No. 51, at 13.) The Court deems the § 2255 Motion filed as of that date. See Houston v. Lack, 487 U.S. 266, 276 (1988).

         In his § 2255 Motion, Petitioner contends that he is entitled to relief because he failed to receive the effective assistance of counsel at sentencing for violating the terms of his supervised release. (ECF No. 51, at 4.) Specifically, Petitioner contends that counsel failed to realize that "Petitioner should have been sentenced under his original Criminal History Category [Level IV] which would have substantially lowered his Guideline Range from 46 to 57 [at Level V] ¶ 37 to 46 months [at Level IV]." (Id.)[2]

         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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