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James v. United States

United States District Court, D. South Carolina, Rock Hill Division

March 30, 2017

Brandon Dupree James, Movant,
v.
United States of America, Respondent.

          ORDER AND OPINION

          Margaret B. Seymour Senior United States Judge

         Movant Brandon Dupree James (“Movant”), proceeding pro se, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

         I. PROCEDURAL BACKGROUND

         Movant 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 appeal.

         Movant 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.

         On 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.

         II. DISCUSSION

         A. Timeliness of Initial § 2255 Motion

         In 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.

         A 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. § 2255(f).

         The 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. § 2255(f)(1).

         As for 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.

         B. Amended § 2255 Motion Pursuant to Johnson

         In 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. ยง 2255(f)(3), Movant's amended ...


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