United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
O'CONNOR, UNITED STATES DISTRICT JUDGE
the Court is Petitioner's petition to vacate, set-aside,
or correct sentence pursuant 28 U.S.C. § 2255. For the
foregoing reasons, the Court dismisses the petition as barred
by the statute of limitations.
November 24, 2009, a jury found Petitioner guilty of (1)
unlawful possession of a firearm by a felon in violation of
18 U.S.C. § 922(g)(1) (Count One); (2) possession with
intent to distribute a controlled substance in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count Two);
and (3) possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A)(i) (Count Three). On April 27, 2010, the Court
sentenced Petitioner to a total of 420 months in prison. On
July 13, 2011, the Fifth Circuit Court of Appeals affirmed.
United States v. Jefferson, 432 Fed. App'x 382
(5th Cir. 2011). On November 14, 2011, the Supreme
Court denied Petitioner's petition for writ of
9, 2016, Petitioner filed the instant § 2255 petition.
He argues his sentence is unlawful under the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), which invalidated the residual clause
of the Armed Career Criminal Act (ACCA). On August 19, 2017,
the government filed its response arguing that the petition
is barred by the statute of limitations. Petitioner did not
file a reply.
Antiterrorism and Effective Death Penalty Act of 1996
establishes a one-year statute of limitations for federal
habeas proceedings. See ANTITERRORISM AND EFFECTIVE
DEATH PENALTY ACT, Pub. L. 104-132, 110 Stat. 1214 (1996)
("AEDPA"). The statute provides that the
limitations 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
Petitioner was prevented from filing by such governmental
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if the 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.
See 28 U.S.C. § 2255(f).
cases, the limitations period begins to run when the judgment
becomes final. See 28 U.S.C. § 2255(f)(1).
Here, Petitioner's conviction became final on November
14, 2011, when the Supreme Court denied certiorari. See
United States v. Thomas, 203 F.3d 350, 356
(5th Cir. 2000). He then had one year, or until
November 14, 2012, to file his § 2255 petition. He did
not file his petition until June 9, 2016. His petition is
therefore untimely under § 2255(f)(1).
claims his petition is timely under § 2255(f)(3) based
on the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). In Johnson, the
Supreme Court considered the residual clause of the ACCA, 18
U.S.C. § 924(e)(2)(B)(ii), which defines “violent
felony” to include any felony that “involves
conduct that presents a serious potential risk of physical
injury to another.” (Id.) The Court found the
residual clause to be unconstitutionally vague. Although
Petitioner was not sentenced under the ACCA, he argues that
the career offender enhancement under ...