United States District Court, D. South Carolina, Orangeburg Division
pro tunc date: October 16, 2017
AMENDED OPINION AND ORDER
Honorable Margaret B. Seymour, Senior United States District
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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. ECF No. 30 at
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.
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
(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.
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). 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.
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