United States District Court, D. South Carolina, Rock Hill Division
ORDER AND OPINION
Margaret B. Seymour Senior United States Judge
Brandon Dupree James (“Movant”), proceeding
pro se, seeks to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255.
was the sole defendant named in a one-count indictment issued
on December 6, 2011. ECF No. 1. Movant was charged with
knowingly possessing a firearm after having been convicted of
a crime punishable by imprisonment for more than one year.
Id. On March 29, 2012, Movant entered a plea of
guilty pursuant to a written plea agreement. ECF Nos. 34, 36.
Prior to sentencing, a presentence investigation report
(“PSR”) was prepared in which Movant was
designated as an armed career criminal pursuant to the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e). ECF No. 46. The PSR indicated that Movant had seven
qualifying predicate South Carolina convictions under the
ACCA: Second Degree Burglary (2003); Assault and Battery of a
High and Aggravated Nature (“ABHAN”) (2003);
Throwing Bodily Fluids on Correctional Facility Employee
(2003); ABHAN (2006); Resisting Arrest with a Deadly Weapon
(2006); Criminal Domestic Violence of a High and Aggravated
Nature (“CDVHAN”) (2006); and Possession with
Intent to Distribute Cocaine Base (“PWID”)
(2007). ECF No. 46. Movant did not file objections to the
PSR. ECF No. 46-2. On July 24, 2012, Movant was sentenced to
180 months of incarceration followed by five years of
supervised release. ECF No. 49. Movant did not file an
filed a § 2255 motion on March 17, 2014. ECF No. 53. On
March 31, 2014, the Government filed a motion to dismiss. ECF
No. 56. The Government also filed a motion for summary
judgment. ECF No. 57. That same day, pursuant to Roseboro
v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court
issued an order advising Movant of the summary judgment
procedures and the possible consequences if he failed to
respond adequately. ECF No. 58. On April 28, 2014, Movant
filed a pro se response to the Government's
motions. ECF No. 60.
September 14, 2015, Movant moved to amend his § 2255
motion to add a claim in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). ECF No. 62. On December
14, 2015, Movant filed a second memorandum in support of his
amended motion. ECF No. 63. On July 11, 2016, Movant filed a
motion requesting that the court appoint counsel. ECF No. 66.
The Government filed a motion to dismiss the amended petition
on July 25, 2016. ECF No. 67. Pursuant to Roseboro,
528 F.2d 309, the court issued a second order advising Movant
of the possible consequences if he failed to respond
adequately. On August 15, 2016, the court granted
Movant's motion to appoint counsel and on October 26,
2016, counsel filed a response to the Government's motion
to dismiss petition. ECF No. 80. At the request of the court,
the Government filed limited briefing on whether Movant's
prior conviction for Second Degree Burglary should be counted
as a predicate offense under United States v.
McLeod, 808 F.3d 972 (2015), and subsequent binding
precedent, to which Movant filed a reply. ECF No. 82, 83.
Timeliness of Initial § 2255 Motion
Movant's initial § 2255 motion, he raised the
following grounds: (1) ineffective assistance of counsel, and
(2) erroneous application of ACCA enhancements pursuant to
Descamps v. United States, 133 S.Ct. 2276 (2013).
The Government contends that Movant's initial § 2255
motion is time-barred. ECF No. 56. The court agrees.
defendant has one year from the latest of (1) the date on
which a judgment of conviction becomes final; (2) the date on
which an impediment to making a motion created by
governmental action in violation of the Constitution or laws
of the United States is removed, if the defendant was
prevented from making a motion by such governmental action;
(3) the date on which a right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or (4) the date on
which the facts supporting the claim could have been
discovered through the exercise of due diligence. 28 U.S.C.
court entered judgment in Movant's case on July 25, 2012.
Pursuant to Fed. R. App. P. 4(b)(1), Movant had fourteen days
to file a notice of appeal, but he did not do so. Therefore,
his time to file an appeal expired on or about August 8,
2012. A judgment of conviction becomes final when the time
for seeking review expires. Clay v. United States,
537 U.S. 522, 525 (2003). Thus, Movant's judgment became
final on August 8, 2012. Given that Movant did not file his
§ 2255 motion until March 17, 2014, well over a year
later, Movant's motion is untimely under 28 U.S.C. §
the remaining subsections of § 2255(f), Movant is unable
to demonstrate that one of the grounds filed in his initial
motion warrants a later filing deadline. There is no evidence
that Movant was prevented from filing a § 2255 motion
because of governmental interference. See 28 U.S.C.
§ 2255(f)(2). Furthermore, Movant fails to identify a
newly created right made retroactively applicable on
collateral review. See 28 U.S.C. § 2255(f)(3).
Although Movant asserts that Descamps v. United
States, 133 S.Ct. 2276 (2013), created such a right,
Descamps has not been declared retroactively
applicable on collateral review. Finally, Movant offers no
evidence of newly discovered facts warranting a later filing
deadline. See 28 U.S.C. § 2255(f)(4).
Therefore, the claims raised in Movant's initial §
2255 motion are time-barred.
Amended § 2255 Motion Pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015), the
Supreme Court held that sentencing enhancements under the
residual clause of the ACCA violated the Constitution's
due process guarantee. Under the ACCA, a defendant convicted
of knowingly possessing a firearm after having been convicted
of a felony, in violation of 18 U.S.C. § 922(g), who has
three previous convictions for a “a violent felony or a
serious drug offense, or both, committed on occasions
different from one another” is subject to enhanced
penalties. See 18 U.S.C. § 924(e)(1). In
Welch v. United States, 136 S.Ct. 1257 (2016), the
Supreme Court clarified that Johnson had in fact
announced a substantive rule that would apply retroactively
on collateral review. Therefore, under 28 U.S.C. §
2255(f)(3), Movant's amended ...