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Houston v. United States

United States District Court, N.D. Ohio, Eastern Division

May 24, 2017

MARCELL HOUSTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO United States District Judge.

         This 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 Petitioner's Petition.

         FACTS

         On 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.

         On 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.

         STANDARD OF REVIEW

         Section 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 the sentence.

         In 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).

         ANALYSIS

         The 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 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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