United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. Hudson Senior United States District Judge
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.
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.
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.)
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.
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.
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,
§ 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]."
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)
(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
(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