United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
Patrick J. Hanna 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
James C. Pitre. [Rec. Doc. 346] This motion was referred to
the undersigned for review, report, and recommendation in
accordance with the provisions of 28 U.S.C. § 636.
December 14, 2010, James C. Pitre was charged by indictment
with one count of conspiracy to distribute methamphetamine,
in violation of 21 U.S.C. § 846 (Count 1); one count of
possession of methamphetamine intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)
(Count 2); three counts of possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) (Counts 3, 5, and 6); and two
counts of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(Counts 4 and 7). [Rec. Doc. 1]. On July 13, 2011, the
defendant pleaded guilty to Counts 1, 3, 4, and 7. [Rec. Doc.
165]. On January 26, 2012, the district court sentenced Pitre
to 120 months' imprisonment on Counts 1, 4, and 7, and 5
years (consecutive) on Count 3. [Rec. Doc. 265, 269]. Pitre
was not sentenced as either an Armed Career Criminal or a
career offender because his criminal record did not qualify
in either respect. Judgment was entered on February 6, 2012.
The defendant did not pursue a direct appeal.
Pitre seeks relief under Johnson v. United States,
135 S.Ct. 2551 (2015). [Rec. Doc. 60, p. 14] Pitre asserts
that he filed his § 2255 motion “in an abundance
of caution” to preserve his right to relief in the
event he was sentenced as an Armed Career Criminal or a
career offender under the sentencing guidelines, or if he was
“eligible for relief under a gun charge or a Hobbs Act
Robbery charge . . . .” [Rec. Doc. 356, p. 4] He claims
his motion is timely under 28 U.S.C. § 2255(f)(3)
because it was filed within a year of the date
Johnson was decided. [Rec. Doc. 346, pp. 1-3].
was appointed counsel under this court's standard
procedural order governing motions seeking relief under
Johnson. [Rec. Doc. 347] His appointed counsel has
withdrawn [Rec. Docs. 349 & 350] and Pitre has not moved
to supplement or withdraw his motion. Accordingly, the Court
now conducts an initial review of Pitre's § 2255
motion under Rule 4(b) of the Rules Governing § 2255
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). Before ordering a response from the government, the
district court must conduct a preliminary review of a §
2255 motion. Rules Governing § 2255 Proceedings in the
United States District Courts, Rule 4(b). Upon that review,
“[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion . . . .” Id.
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. ParraMartinez 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)).
Johnson, supra, 135 S.Ct. 2551 (2015), made
retroactively applicable in United States v. Welch,
136 S.Ct. 1257 (2016), 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. 135 S.Ct. at
2563. Thus, a sentence enhancement based on that provision
violated a defendant's right to due process. Id.
is inapplicable to Pitre's case. He was not sentenced
under the Armed Career Criminal Act, nor was he classified as
a career offender under the guidelines, or prosecuted under
the Hobbs Act. While he was convicted under 18 U.S.C. §
924(c), his predicate offense was not a “crime of
violence, ” but a “drug trafficking
offense.” Thus, as no aspect of his case is governed by
Johnson, his motion is time-barred.
reasons set forth above, IT IS RECOMMENDED that the instant
§ 2255 motion be DENIED and DISMISSED WITH PREJUDICE
under Rule 4(b) of ...