United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO United States District Judge.
matter is before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§2255 (ECF #28). Respondent filed a Response in
Opposition to Petitioner's Motion and Motion to Dismiss
(ECF #31). Petitioner filed Reply to Government's Motion
to Dismiss. (ECF #32). For the following reasons, the Court
grants Respondent's Motion to Dismiss and dismisses
February 13, 2007, Petitioner was charged with Distribution
of Cocaine Base (“Crack”), Possession With Intent
to Distribute Cocaine Base (“Crack”) and
Possession With Intent to Distribute Cocaine. The Government
filed Information to Establish Prior Conviction under 21
U.S.C. § 851 on June 11, 2007, which had the effect of
increasing the sentencing provisions under 21 U.S.C. §
841(b)(1). Petitioner pleaded guilty to Count Two of the
Indictment. On November 30, 2007, the Court sentenced
Petitioner to 175 months imprisonment, to be followed by five
years of Supervised Release. Petitioner did not appeal.
March 23, 2016, Petitioner filed the instant Motion to Vacate
asserting that he is no longer a Career Offender following
the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). Respondent
asserts that Petitioner's Petition is time barred because
he does not present any new right recognized by the Supreme
Court which would trigger the new one-year period to file a
Motion to Vacate.
2255 of Title 28, United States Code, provides:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
order to prevail upon a §2255 motion, the movant must
allege as a basis for relief: ‘(1) an error of
constitutional magnitude; (2) a sentence imposed outside the
statutory limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding invalid.
'” Mallett v. United States, 334 F.3d
496-497 (6th Cir. 2003), quoting Weinberger v. United
States, 268 F.3d 346, 351 (6th Cir.2001).
Court agrees that Petitioner's Petition is untimely. A
one-year statute of limitations applies to Section 2255
motions. Title 28 U.S.C. Section 2255(f). The limitations
period runs from the latest of:
(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