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United States v. Ledet

United States District Court, W.D. Louisiana, Lake Charles Division

March 22, 2018

UNITED STATES OF AMERICA
v.
LARRY W. LEDET, JR.

          MINALDI JUDGE.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before the court is a Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 by defendant Larry W. Ledet, Jr. Doc. 65. The government opposes the motion. Doc. 73.

         This motion was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For reasons stated below, IT IS RECOMMENDED that the motion be DENIED and DISMISSED WITH PREJUDICE as time-barred under § 2255(f).

         I. Background

         Pursuant to a plea agreement, Ledet was convicted in this court on June 4, 2009, of one count of being a felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Docs. 45, 46; see doc. 1 (indictment). The government asserts, and Ledet does not contest, that the presentence report determined that he was subject to the enhanced penalty provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his prior convictions but did not specify which convictions that determination was based on.[1] Doc. 73, pp. 1-2; see doc. 46, att. 2. Accordingly, he was sentenced to a 180 month term of imprisonment, the minimum allowed under the ACCA, on September 10, 2009. Doc. 50; see doc. 46, att. 1. Ledet appealed to the United States Fifth Circuit Court of Appeal, which affirmed his conviction and sentence. Doc. 62. He then filed a petition for writ of certiorari in the United States Supreme Court, which denied same on November 15, 2010. Doc. 63.

         On March 21, 2016, this court received a motion from Ledet requesting resentencing based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Doc. 65. Under the court's standard procedural and administrative orders governing Johnson-based § 2255 motions, the Office of the Public Defender was appointed to represent Ledet. Doc. 66. Ledet then filed a pro se memorandum clarifying his grounds for relief and his attorney was granted leave to withdraw. Doc. 68; see docs. 71, 72. The government filed its opposition to the motion on March 27, 2017, and noted there that the matter was currently subject to a stay effective until July 1, 2017. Doc. 73, p. 3. No. reply was received to the government's response, and no further administrative or procedural order has been entered as to this matter. Accordingly, the motion is now ripe for review.

         II. Law and Analysis

         Following conviction and exhaustion or waiver of the right to appeal, the court presumes that a defendant “stands fairly and finally convicted.” United States v. Shaid, 937 F.2d 228, 231- 32 (5th Cir. 1991) (quoting United States v. Frady, 102 S.Ct. 1584, 1592 (1982)). Relief under § 2255 “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).

         A motion filed under § 2255 is subject to a one-year limitations period, running from the latest of the following dates: (1) when the judgment became final; (2) when a government-created impediment to filing the motion was removed; (3) when the United States Supreme Court initially recognized and made retroactively applicable the legal predicate for the motion; or (4) when the petitioner could have discovered, through due diligence, the factual predicate for the motion. 28 U.S.C. § 2255(f). A judgment becomes final, under this section, when the applicable period for seeking direct review of a conviction has expired. Clay v. United States, 123 S.Ct. 1072, 1075-76 (2003). The limitations period is not jurisdictional and is subject to equitable tolling. Parra-Martinez v. United States, 2015 WL 9244611, at *3 (W.D. Tex. Dec. 16, 2015) (citing Holland v. Florida, 130 S.Ct. 2549, 2560 (2010)). Equitable tolling is only appropriate, however, in “rare and exceptional circumstances” and “is not intended for those who sleep on their rights.” Id. (quoting Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002); Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999)).

         The ACCA provides for certain penalty enhancements, like the one received by Ledet, for defendants who violate 18 U.S.C. § 922(g) and are found to have three previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Ledet argues that he is entitled to relief based on the Supreme Court's decision in Johnson, supra, 135 S.Ct. 2551 (2015), which was made retroactively applicable to cases on collateral review in United States v. Welch, 136 S.Ct. 1257 (2016). In Johnson the Court held that a portion of the statutory definition of a “violent felony” in the ACCA's “residual clause, ” at § 924(e)(2)(B)(ii), was unconstitutionally vague, meaning that a sentence enhancement based on that provision violated a defendant's right to due process. 135 S.Ct. at 2563. As the government notes, however, it left other provisions of the ACCA intact, including the remainder of the statute's definition of a violent felony as well as its entire definition of a “serious drug offense.” Id.; see, e.g., In re Sargent, 837 F.3d 675, 677 (6th Cir. 2016) (“Johnson invalidated only the residual clause of the ACCA's definition of a violent felony; it did not invalidate the enumerated felony clause or any portion of the definition of a ‘serious drug offense.'”).

         The government shows that Ledet's prior convictions included three separate convictions for distribution of controlled substances and one conviction for possession with intent to distribute a controlled substance. Doc. 46, att. 2; see doc. 73, att. 1. These convictions would qualify as “serious drug offenses” under the ACCA. See 18 U.S.C. § 924(e)(2)(A)(ii). Accordingly, Ledet cannot show that Johnson has any application to the penalty enhancement he received. Because Johnson does not apply to his case and he asserts no grounds for equitable tolling or a later start date of the running of the limitations period under § 2255(f), his motion is time-barred and must be denied.

         III. Conclusion

         For the reasons set forth above, IT IS RECOMMENDED that the instant § 2255 motion be DENIED and DISMISSED WITH ...


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