United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
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.
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).
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. 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.
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.
Law and Analysis
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.
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)).
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.'”).
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.
reasons set forth above, IT IS RECOMMENDED
that the instant § 2255 motion be
DENIED and DISMISSED WITH