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Roland v. Ubited States

United States District Court, E.D. North Carolina, Western Division

April 12, 2018

MARVIN G. ROLAND, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Malcolm J. Howard Senior United States District Judge.

         This matter is before the court on the government's motion to dismiss, [DE #73], petitioner's motion to vacate pursuant to 28 U.S.C. § 2255, [DE #69]. Petitioner has filed a response [DE #178], and these matters are ripe for adjudication. Former President Obama issued an Executive Order of Clemency on January 17, 2017, which commuted petitioner's sentence to May 19, 2017, leaving intact the court's imposition of supervised release.[1]

         BACKGROUND

         On February 25, 1999, petitioner pled guilty, pursuant to a written plea agreement, to two counts of an indictment charging him with conspiracy to distribute and possess with intent to distribute a Schedule II controlled substance in violation of 21 U.S.C. § 841(a) (1) and § 846 (Count One) and using and carrying a firearm during and in relation to a drug trafficking crime, and aiding and abetting the same, in violation of 18 U.S.C. § 924(c)(1) and § 2 (Count Three).[2] [DE #35 at 4-5]. On July 12, 1999, the court sentenced petitioner to a term of imprisonment of 322 months. [DE #50 at 2]. Petitioner did not appeal.

         More than fifteen years later, on July 8, 2016, petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 [DE #69], claiming the court erred when it classified him as a career offender under USSG § 4B1.1 for Florida drug convictions which he contends were not controlled substance offenses based upon recent Supreme Court decisions in Descamps v. United States, 570 U.S. 254 (2013) and Mathis v. United States, 136 S.Ct. 2243 (2016) . [DE #69-1 at 3] .

         COURT'S DISCUSSION

         Title 28 U.S.C. § 2255 imposes a one-year statute of limitations on actions filed pursuant to that section. The pertinent text of 28 U.S.C. § 2255 provides that:

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 diligence.

28 U.S.C. § 2255(f).

         Petitioner's 28 U.S.C. § 2255 motion was not filed within one year of the entry of judgment. Petitioner contends his motion is timely under 28 U.S.C. § 2255(f)(3). [DE #69-1 at 1]. However, neither Descamps nor Mathis recognize the right asserted by petitioner, but rather address the way in which certain prior convictions qualify as violent felonies under the Armed Career Criminal Act ("ACCA"). Petitioner is not disputing the designation of prior convictions as violent felonies under the ACCA, but rather the designation of prior convictions as controlled substance offenses under the United States ...


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