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United States v. Dean

United States District Court, D. South Carolina, Columbia Division

October 13, 2017

United States of America,
v.
Jimmy R. Dean, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Defendant's pro se motion to vacate pursuant to 28 U.S.C. § 2255. ECF No. 184. The Government filed a response in opposition and a motion to dismiss. ECF No. 189, 190. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the appropriate procedure and the consequences if he failed to respond. ECF No. 191. Defendant filed a response in opposition to the Government's motion. ECF No. 193.

         Defendant argues “his sentence is excessive in light of the crime(s) committed, and seeks to have his sentence modified based upon the Supreme Court's rationale” in Dean v. United States, 581 U.S.__, 137 S.Ct. 1170 (2017). ECF No. 184. Defendant argues his sentence “almost exactly mirrors the sentence handed down in the Dean case, ” and therefore is excessive, and he should be considered for a sentence modification.

         The Government argues Defendant waived his right to seek relief under § 2255 in his plea agreement, and therefore his motion is barred and should be dismissed. ECF No. 190. It also argues Defendant's motion is untimely under § 2255(f). Id. In response, Defendant argues enforcing the waiver would be unconscionable, and his motion is timely due to a change in law by the Supreme Court in Dean. ECF No. 193. Further, he contends the court “can reconsider his sentence based on the sentencing factors contained in Section 3553.” Id. at 2.

         Dean held a district court can structure a sentence on multiple counts by considering the sentence on one count in light of sentences imposed on other counts, and may consider the § 3553(a) factors in determining the sentence for each individual count. 137 S.Ct. at 1176. However, the Supreme Court has not held Dean to be retroactively available to cases on collateral review. Therefore, Defendant cannot avail himself of its holding to reduce his sentence.

         In addition, Defendant's motion is untimely. A 1-year period of limitation applies to motions under § 2255.

         The limitation period shall run 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 applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). As noted by the Government, Defendant did not bring his § 2255 motion within a year of the judgment of conviction becoming final: the Judgment was entered on the record on May 27, 2009, and Defendant did not appeal. Defendant alleges no facts showing (f)(2) or (4) applies. He does argue his claim is timely under (f)(3), because of the change in law by the Supreme Court in Dean. However, as mentioned above, any right made available by Dean has not been made retroactively available to cases on collateral review. Therefore, (f)(3) does not apply to Defendant's case, and his § 2255 motion is untimely.[1]

         Defendant's motion is time-barred.[2] Accordingly, the Government's motion to dismiss is granted, and Defendant's § 2255 motion is hereby dismissed.

         CERTIFICATE ...


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