United States District Court, N.D. Texas, Dallas Division
OPINION AND ORDER
O' CONNER, UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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
1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(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.
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 ...