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 #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.
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
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.
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.
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.
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.
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 ...