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Jackson v. United States

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

October 26, 2017

Henry Lee Jackson Jr., Movant,
v.
United States of America, Respondent.

          Nunc pro tunc date: October 16, 2017

          AMENDED OPINION AND ORDER

          Honorable Margaret B. Seymour, Senior United States District Judge.

         Movant Henry Lee Jackson Jr. (“Movant”), an inmate in the custody of the Federal Bureau of Prisons, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 84.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On April 9, 2003 Movant was indicted for felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One). ECF No. 1. Movant pleaded guilty to Count One pursuant to a written plea agreement on June 30, 2003. ECF No. 19. Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR”). The Probation Officer designated Movant as an Armed Career Criminal under the Armed Career Criminal Act (“ACCA”) 18 U.S.C. § 924(e), which increased Movant's Base Offense Level from 24 to a Total Offense Level of 30, with a Criminal History Category of V. Movant's career criminal designation was based on five convictions for Assault and Battery of a High and Aggravated Nature (“ABHAN”). Pursuant to the United States Sentencing Guidelines (“Guidelines”), Movant's guideline range was calculated at 180 to 188 months imprisonment, with not more than five years supervised release. At sentencing, the government moved for a downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). ECF No. 28. The court granted an oral motion to depart downward from the Guidelines and on November 12, 2003, the court sentenced Movant to 120 months imprisonment, with a supervised release term of 5 years.[1] ECF No. 30 at 2-3.

         Movant filed the within § 2255 motion on August 23, 2017. Movant, appearing through counsel, asserts that, in light of the Supreme Court's decision in Johnson v. United States, 576 U.S. __, __ 135 S.Ct. 2551, 2557 (2015), and Welch v. United States, 578 U.S.__, __ 136 S.Ct. 1257, 1265 (2016), Movant does not have the requisite number of qualifying predicate offenses to be found an armed career criminal. ECF. No. 82. On September 14, 2017, Respondent filed a motion to dismiss, or, alternatively, for summary judgment on the grounds that the § 2255 motion is untimely. ECF No. 84. Movant filed a response to the Respondent's motion on September 21, 2017. ECF No. 86.

         II. DISCUSSION

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §§ 2241 et seq., a one-year statute of limitations applies to motions brought under 28 U.S.C. § 2255. 28 U.S.C. § 2255(f). The one-year statute of limitations runs 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.

Id. Thus, under § 2255(f)(3), Movant's motion will be timely if “(1) he relies on a right recognized by the Supreme Court after his judgment became final, (2) he files a motion within one year from ‘the date on which the right asserted was initially recognized by the Supreme Court, ” 28 U.S.C. § 2255(f)(3), and (3) the Supreme Court or this court has made the right retroactively applicable.' United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017). Movant asserts that he is entitled to relief based on the Supreme Court's decision in Welch which held that Johnson is retroactive. ECF No. 82. Additionally, Movant argues that without the enhancement under § 924(e), the maximum term of supervised release could have only been three years. ECF No. 82 at 1. See 18 U.S.C. § 3583(b)(2). Movant further contends that without the enhancement, the maximum penalty for any violation of supervised release would be two years. ECF No. 82 at 2. See 18 U.S.C. § 3583(e)(3).[2] Respondent does not dispute that Movant would no longer qualify as an armed career criminal. See ECF No. 84 at 3 n.2. Respondent does, however, contend that Movant's motion is time barred, and therefore should be dismissed. Id. at 3.

         Welch was decided on April 18, 2016. Thus, the one year statute of limitations defined in § 2255(f)(3) ran on April 18, 2017. Movant filed his Motion on August 23, 2017, more than four months after the statute of limitations expired. ECF No. 82. Movant does not dispute that he filed his § 2255 motion ...


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