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United States v. Bennett

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

January 11, 2019

UNITED STATES OF AMERICA
v.
KEVIN LEE BENNETT, Petitioner.

          MEMORANDUM OPINION

          John A. Gibney, Jr. United States District Judge.

         Kevin Lee Bennett, 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. 35).[1] The Government has responded, asserting that Bennett's § 2255 Motion is barred by the statute of limitations. (ECF No. 43.) Bennett filed an "OPPOSITION TO GOVERNMENT'S REQUEST TO FILE 'OUT OF TIME, '" but he fails to address the Government's arguments.[2] For the reasons set forth below, Bennett's § 2255 Motion will be denied as untimely.

         I. PROCEDURAL HISTORY

         On October 27, 2014, Bennett pled guilty to possession of a firearm during and in furtherance of drug trafficking (Count Two). (ECF No. 17, at 1-2.) On January 28, 2015, the Court sentenced Bennett to 240 months of imprisonment, and Counts One and Three were dismissed upon motion of the Government. (ECF No. 29, at 1-2.) Bennett filed no appeal. On August 30, 2017, Bennett filed the instant § 2255 Motion. (ECF No. 35, at 5.)[3]

         In his § 2255 Motion, Bennett contends that he is entitled to relief because the Court improperly found him to be a career offender under the United States Sentencing Guidelines. (Id. at 2-5.)

         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 o f 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 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 exercise of due diligence.

28 U.S.C. § 2255(f).

         A. The Statute of Limitations Bars Bennett's ...


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