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Newsome v. United States

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

October 25, 2017

REMUS NEWSOME, 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 #97) and Supplemental Motion in Support of Motion to Vacate (ECF#107). Respondent filed a Response in Opposition to Petitioner's Second Motion to Vacate (ECF #108). Petitioner filed a Response to Government's Response to Second Motion. (ECF #109). For the following reasons, the Court dismisses Petitioner's Petition.

         FACTS

         On February 1, 2011, an Indictment was filed charging Petitioner with Felon in Possession of a Firearm and Ammunition, Possession With Intent to Distribute 28 Grams of Crack Cocaine, Possession With Intent to Distribute Heroin and Possession of a Stolen Firearm. Petitioner filed a Motion to Suppress which was denied. On November 1, 2011, Petitioner pled guilty to Felon in Possession of a Firearm and Possession With Intent to Distribute Cocaine pursuant to a Plea Agreement. Petitioner was sentenced on November 3, 2011, to 151 months imprisonment on Count Two, Possession With Intent to Distribute Cocaine and 120 months imprisonment on Count One, Felon in Possession of a Firearm, concurrent to Count Two.

         Petitioner filed his Notice of Appeal on November 7, 2011. The Sixth Circuit affirmed the Court's Order denying the Motion to Suppress with the exception of the one sub-argument made by Petitioner noting that the United States correctly stated that the exclusionary rule would apply to the firearm. The Court of Appeals vacated Petitioner's Felon in Possession conviction and remanded the case to re-sentence Petitioner for the limited purpose of readjusting the sentence. On January 16, 2013, the Court re-sentenced Petitioner but because Count Two controlled Petitioner's sentence length, his term of imprisonment remained unchanged.

         Defendant appealed this re-sentencing on January 29, 2013. The Sixth Circuit affirmed the district court's re-sentencing and denied the Appeal. Petitioner then filed a Motion to Withdraw his Plea which the Court denied.

         Petitioner then filed for relief under 28 U.S.C. § 2255, arguing that his counsel were ineffective for failing to challenge his Career Offender designation and that he should have been able to withdraw his guilty plea. The Court denied his Motion on April 10, 2015. On July 1, 2016, Petitioner filed another Motion under 28 U.S.C. § 2255, seeking relief from his Career Offender designation following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The Government moved to dismiss the Motion as a second or successive Petition. The Court transferred the Motion to the Sixth Circuit for authorization.

         The Sixth Circuit granted Petitioner's request for permission to file a second or successive Petition and instructed the Court to hold the Petition in abeyance pending the Supreme Court's decision in Beckles v. United States, 136 S.Ct. 2510 (2016). Beckles v. United States, 137 S.Ct. 886 (2017), was decided on March 6, 2017. 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 ...


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