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Riley v. United States

United States District Court, W.D. Michigan, Southern Division

July 27, 2017

EFFREM RILEY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Movant Effrem Riley's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (ECF No. 1.) The Government has filed a response (ECF No. 4) and Movant has filed a motion to amend his motion under § 2255 (ECF No. 5), which the Court construes as a motion to supplement. For the reasons that follow, both motions will be denied.

         I.

         In 2009, Movant pleaded guilty to possession with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A). (Plea Agreement, United States v. Riley, No. 1:08-cr-337 (W.D. Mich.), ECF No. 15.) The Court sentenced him to a term of 240 months in prison followed by 10 years of supervised release. Movant's range of sentence under the Sentencing Guidelines (262 to 327 months) was enhanced by the career-offender provision in § 4B1.1 of the Guidelines because he had two prior convictions for a controlled substance offense. However, the Court granted Movant's motion for a downward variance and issued a sentence below this range. Movant appealed his sentence, and the Court's judgment was affirmed by the Court of Appeals on March 3, 2011.

         In his initial motion under § 2255, Movant asserts the following grounds for relief: (1) ineffective assistance of counsel at the plea stage; (2) the Court improperly determined that he is a repeat offender under 21 U.S.C. § 851 and a career offender under the Sentencing Guidelines for the same prior conviction; (3) he is entitled to the benefit of Amendment 782 to the Sentencing Guidelines; and (4) his sentence is unconstitutional because the Sentencing Guidelines treated one gram of cocaine base as equivalent to 100 grams of cocaine.

         In his motion to supplement, Movant claims that he does not qualify as a career offender under the Guidelines because at least one of his two prior convictions does not qualify as a controlled substance offense, in light of Johnson v. United States, 135 S.Ct. 2551 (2015), and Mathis v. United States, 126 S.Ct. 2243 (2016).

         II.

         Respondent asserts that Movant's claims are barred by the statute of limitations. The Court agrees. The applicable limitation period runs 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 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 due diligence.

28 U.S.C § 2255(f).

         In this case, as in most cases, the one-year statute of limitations ran from the date on which the judgment of conviction became final. Where, as here, a defendant pursues a direct appeal but does not petition the United States Supreme Court for a writ of certiorari, the judgment becomes final when the time expires for filing a petition for a writ of certiorari. Clay v. United States, 537 U.S. 522, 532 (2003). Such a petition is timely when it is filed within 90 days after entry of the appellate court's judgment. Sup. Ct. R. 13(3). In this case, the Court of Appeals' decision issued on March 3, 2011. Consequently, the statute of limitations ...


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