United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
addition, Defendant's motion is untimely. A 1-year period
of limitation applies to motions under § 2255.
limitation period shall run from the latest of--
(1) the date on which the judgment of conviction becomes
(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
(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.
motion is time-barred. Accordingly, the Government's motion
to dismiss is granted, and Defendant's § 2255 motion
is hereby dismissed.