United States District Court, W.D. Louisiana, Lafayette Division
WHITEHURST, MAGISTRATE JUDGE.
MICHAEL J. JUNEAU, UNITED STATES DISTRICT JUDGE.
the court is the Motion to Vacate filed by petitioner, Gordon
Ray Thomas (Thomas), pursuant to 28 U.S.C. § 2255. [Rec.
Doc. 60');">60]. Thomas contends that his counsel was ineffective
for failing to object to his sentence and that he is entitled
to relief under Johnson v. United States, 135 S.Ct.
2251 (2015). For the reasons enunciated below, Thomas's
§ 2255 motion is DENIED and DISMISSED WITH
PREJUDICE for failing to state a claim for which
relief may be granted.
record reveals that on August 31, 1995, Thomas was convicted
at trial on one count of possession of an unregistered
firearm, in violation of 26 U.S.C. § 5861(d) (Count 1);
one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)
(Count 2); and one count of transporting stolen vehicles, in
violation of 18 U.S.C. § 2312 (Count 3). He was
sentenced to a total of 327 months imprisonment, followed by
five years supervised release. His sentence on the third
count, an offense typically carrying a 10-year statutory
maximum, was enhanced under the Armed Career Criminal Act, 18
U.S.C. § 924(e) (ACCA), based on four prior Louisiana
convictions for “armed robbery.” [PSR at
¶¶ 36, 41 (Sealed)]. The Court expressly ordered
that he serve his federal 327-month sentence consecutively to
an undischarged state sentence, as required by a then-binding
guideline provision cited in the PSR. Judgment was entered on
September 5, 1995. [Rec. Doc. 50]. Thomas did not appeal.
Motion to Vacate presently before this Court was filed June
13, 2016, [Rec. Doc. 60');">60], raising two issues: (1) Defense
counsel rendered constitutionally ineffective assistance of
counsel in failing to object to Thomas's sentencing under
the ACCA on the ground that some of the predicate convictions
relied upon by the Court were actually part of the instant
offense [Rec. Doc. 60');">60, pp. 8-12]; and (2) Thomas is entitled
to relief under Johnson because, without the
residual clause invalidated by Johnson, his armed
robbery convictions do not constitute valid ACCA predicates.
[Rec. Doc. 60');">60, pp. 13-16].
Court issued the standard administrative and procedural
orders applicable to Johnson-based claims, which,
among other things, appointed the Office of the Federal
Public Defender to represent Thomas in connection with his
motion. [Rec. Docs. 67 & 68]. The Court granted the
Public Defender's Motion to Withdraw as Counsel on March
29, 2018. [Rec. Docs. 70 & 71].
Law and Analysis
The Law of § 2255 Actions, Generally
are four grounds upon which a federal prisoner may move to
vacate, set aside, or correct his sentence: (1) the sentence
was imposed in violation of the Constitution or laws of the
United States; (2) the court was without jurisdiction to
impose the sentence; (3) the sentence exceeds the statutory
maximum sentence; or (4) the sentence is “otherwise
subject to collateral attack.” See 28 U.S.C.
§ 2255; United States v. Cates, 952 F.2d 149,
151 (5th Cir.), cert. denied, 504 U.S. 962 (1992).
The scope of relief under § 2255 is consistent with that
of the writ of habeas corpus. See Cates, 952 F.2d at
151; see also United States v. Placente, 81 F.3d
555, 558 (5th Cir. 1996).
did not appeal his conviction and sentence. 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. Non-constitutional
claims that could have been raised on direct appeal, but were
not, may not be asserted in a collateral proceeding. See
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.
1992); see also United States v. Ressler, 54 F.3d
257, 259 (5th Cir. 1995).
collateral challenge may not do service for an appeal.
See United States v. Shaid, 937 F.2d 228, 231 (5th
Cir. 1991), cert. denied, 502 U.S. 1076 (1992).
After conviction and exhaustion or waiver of any right to
appeal, the federal courts are entitled to presume that the
defendant stands fairly and finally convicted. See
Id. at 231-32. Even if a defendant raises a
constitutional error, he may not raise an issue for the first
time on collateral review without showing both cause for his
procedural default and actual prejudice resulting from the
error. See Id. at 232; see also United States v.
Mimms, 43 F.3d 217, 219 (5th Cir. 1995). Absent
exceptional circumstances, establishment of ineffective
assistance of counsel satisfies cause and prejudice. See
United States v. Acklen, 47 F.3d 739, 742 (5th Cir.
Thomas's § 2255 Motion Is Untimely.
§ 2255 motion before this Court is untimely and,
therefore, should be dismissed. Title 28 U.S.C. § 2255
provides a one-year statute of limitations for the filing of
motions pursuant to § 2255. This limitation period
generally runs from the date that the conviction becomes
final. 28 U.S.C. § 2255(f)(1). Petitioner's
conviction became final on September 19, 1995, ten days
(excluding holidays and weekends) after petitioner's
judgment of conviction was entered on this Court's
docket. See United States v. Plascencia, 537 F.3d
385, 388 (5th Cir. 2008). Petitioner therefore had one year,
or until September 19, 1996, to file his § 2255 motion
in this Court. The instant motion was not filed until June
13, 2016. Thus, Petitioner's claims cannot be considered
under the period established by 28 U.S.C. § 2255(f)(1).
Rather, petitioner must rely on one of three statutory
exceptions to the general rule which can, in ...