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Weatherall v. United States

United States District Court, N.D. Texas, Dallas Division

November 7, 2017

PATRICK WEATHERALL, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          REED O' CONNER, UNITED STATES DISTRICT JUDGE.

         Patrick Weatherall (“Movant”), a federal prisoner, filed a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. After considering his Section 2255 motion (ECF No. 2) and the government's response (ECF No. 5), the Court concludes that the Section 2255 motion should be dismissed with prejudice as time-barred.

         Applicable Background

         Movant pleaded guilty to conspiracy to distribute a controlled substance. See United States v. Weatherall, No. 3:10-cr-38-O-(05), ECF No. 168. His Presentence Report noted that he qualified as a career offender under United States Sentencing Guideline (U.S.S.G.) § 4B1.1. Nevertheless, that Section was not used to calculate his guideline sentence because it had no effect on his offense level. See United States v. Weatherall, No. 3:10-cr-38-O-(05), ECF Nos. 136 & 156. The Court adopted the Presentence Report and sentenced Movant to 300 months in prison with four years of supervised release. See United States v. Weatherall, No. 3:10-cr-38-O-(05), ECF No. 168.

         Movant's direct appeal was dismissed on April 20, 2012, see United States v. Weatherall, No. 10-11161 (5th Cir. 2012), and he did not file a petition for a writ of certiorari. Movant later moved for a sentence reduction pursuant to 18 U.S.C. § 3582. See United States v. Weatherall, No. 3:10-cr-38-O-(05), ECF No. 292. The Court denied the motion because Movant qualified as a career offender under U.S.S.G. § 4B1.1 and thus was not entitled to resentencing in light of Amendment 782. See United States v. Weatherall, No. 3:10-cr-38-O-(05), ECF No. 301.

         Movant then filed this 28 U.S.C. § 2255 motion in June 2016. He claims that he no longer qualifies as a career offender under U.S.S.G. § 4B1.1 after Johnson v. United States, 135 S.Ct. 2551 (2015) and that his counsel was ineffective for failing to raise that and other arguments at sentencing. See ECF No. 2 at 7. The government responds that his Section 2255 motion is time-barred. See ECF No. 5 at 5-7. Movant did not file a reply.

         Statute of Limitations

         Movant's Section 2255 motion is time-barred. “[Section] 2255 establishes a ‘1-year period of limitation' within which a federal prisoner may file a motion to vacate, set aside, or correct his sentence under that section.” Dodd v. United States, 545 U.S. 353, 356 (2005). It states:

         A 1-year period of limitation shall apply to a motion under this section. 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). Here, Movant's statute of limitations began to run when his judgment of conviction became final. See 28 U.S.C. § 2255(f)(1). Movant's conviction became final on July 19, 2012, when the ninety-day period for filing a certiorari petition expired. See Clay v. United States, 537 U.S. 522, 527 (2003) (holding that “[f]inality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition ...


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