United States District Court, W.D. Virginia, Abingdon Division
Jennifer Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States; Kimberly Renee
Rasnick, Pro Se Defendant.
P. JONES UNITED STATES DISTRICT JUDGE
defendant, Kimberly Renee Rasnick, proceeding pro se, has
filed a motion seeking relief under 28 U.S.C. § 2255.
The United States has filed a motion to dismiss, to which the
movant has responded. For the reasons stated, I will grant
the motion to dismiss and dismiss the § 2255 motion.
pleaded guilty on September 17, 2008, without a plea bargain.
After pleading guilty, the defendant was sentenced by this
court on December 11, 2008, to a total term of 151 months
imprisonment, consisting of 60 months on Counts Five and
Eight of the Indictment, to be served consecutively, followed
by a term of 31 months on Counts One and Nine, to be served
concurrently with each other but consecutive to the sentences
for Counts Five and Eight. Count One of the Indictment
charged Rasnick with conspiracy to distribute Methylin,
Ritalin, morphine, and hydrocodone, in violation of 21 U.S.C.
§§ 841(a)(1), 846. Counts Five, Eight, and Nine of
the Indictment charged Rasnick with distribution and
possession with intent to distribute hydrocodone, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C),
did not appeal her conviction, file a petition for a writ of
certiorari, or file a § 2255 motion within one year of
the date of the judgment. On June 10, 2016, Rasnick filed a
§ 2255 motion asserting she was entitled to a new
sentencing in light of Johnson v. United States, 135
S.Ct. 2551 (2015). ECF No. 249. Following the decision in
Beckles v. United States, 137 S.Ct. 886 (2017),
Rasnick's first petition was dismissed without prejudice
on March 24, 2017. ECF No. 269. On June 29, 2018, Rasnick
filed her current § 2255 motion. The United States has
filed a Motion to Dismiss.
Rasnick's § 2255 motion, she contends (1) that her
sentence violated the Fifth Amendment by depriving her of ten
years of her life and liberty; and (2) that her sentence
violated the Eighth Amendment because she was over-sentenced
for her charges.
state a viable claim for relief under § 2255, Rasnick
must prove: (1) that 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). The movant 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).
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington, 466 U.S. 668,
687 (1984). Ineffective assistance claims, however, are not
lightly granted; “[t]he benchmark for judging any claim
of ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the [proceeding] cannot be relied on as having produced
a just result.” Id. at 686. To that end, a
defendant must satisfy a two-prong analysis showing both that
counsel's performance fell below an objective standard of
reasonableness and that the defendant was prejudiced by
counsel's alleged deficient performance. Id. at
pleadings are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). However, a court may not
construct a party's legal arguments for him. Small v.
Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Conclusory
allegations of ineffective assistance of counsel, without
factual support, are insufficient to raise a constitutional
issue or require an evidentiary hearing.
petition will be dismissed for two reasons. First, her
petition is untimely. There is a one-year statute of
limitations for filing a motion to vacate under § 2255
which runs from the date on which her judgment of conviction
became final. 28 U.S.C. § 2255(f)(1). The judgment in a
criminal case becomes final when the time for filing an
appeal passes. Clay v. United States, 537 U.S. 522,
532 (2003). A defendant can extend the statute of limitations
(1) if the government prevents a defendant from filing a
motion; (2) if the Supreme Court articulates a “newly
recognized” right, which is made retroactively
applicable to cases on collateral review; or (3) if new facts
emerge that support a claim which is asserted within one year
of the date the facts “could have been discovered
through the exercise of due diligence.” 28 U.S.C.
Rasnick was sentenced on December 11, 2008, the one-year
period started from December 22, 2008, the Monday following
the tenth day after the district court entered its judgment.
Rasnick filed her present motion on June 29, 2018, more than
nine years after her judgment became final. In her motion,
she did not identify any factors which would allow her to
extend the statute of limitations under §
2255(f)(2)-(4). After filing her motion, she was ordered by
the court to explain why her motion should be deemed timely.
Order, ECF No. 288. In her subsequent pleading, Rasnick did
not identify any factors that would extend the statute of
limitations, nor did ...