Weir v. United States of America
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/1/2016. (JLC)
2016 Aug-01 PM 02:21
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
LAMARCUS D. WEIR,
UNITED STATES OF
Case No.: 7:16-CV-8058-VEH
This cause is before the court on Defendant Lamarcus D. Weir’s motion to
vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. §
2255. (Doc. cv-2 cr-24. The motion was filed on May 19, 2016. (Id.). It is Weir’s
first motion under section 2255.
On April 21, 2011, Levert pleaded guilty to one count of Possession with
Intent to Distribute 28 Grams or More of a Mixture and Substance Containing
Cocaine Base and Possession with Intent to Distribute a Mixture and Substance
Containing Cocaine Hydrochloride, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B). (Doc. cv-1; cr-docket entry dated 4/21/2011). On August 3, 2011, this
court imposed sentence. (Cr-docket entry dated 8/3/2011). Judgment was entered
by the district court that same date. (Doc. cr-21). Weir was sentenced to a term of
262 months imprisonment. (Id.). No appeal was taken.
Because review “of the motion and the file and records of the case
conclusively show that the defendant is entitled to no relief,” the Court will not
cause notice thereof to be served upon the United States Attorney but shall
proceed to address the matter. See 28 U.S.C. § 2255.
I. The Motion Is Timely
On April 24, 1996, a substantial amendment to 28 U.S.C. § 2255 became
effective. That amendment, Section 105 of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, established
a one-year “period of limitation” for the filing of a Section 2255 motion, to run
from the latest of: 1) the date on which the judgment of conviction becomes final;
2) the date any unconstitutional government impediment, if any, precluding the
movant from making a motion is removed; 3) the date on which the right asserted
was initially recognized by the United States Supreme Court; or 4) the date on
which the facts supporting the claim could have been discovered through the
exercise of due diligence. 28 U.S.C. § 2255, as amended by Pub. L. No. 104-132,
Title 1, § 105 (Apr. 24, 1996).
For final judgments entered after the effective date of the AEDPA, or April
24, 1996, as in this case, the statute of limitations begins to run on the date the
district court's judgment of conviction becomes final. “For the purpose of starting
the clock on Section 2255's one-year limitation period, a judgment of conviction
becomes final when the time expires for filing a petition for certiorari contesting
the appellate court's affirmation of the conviction.” Clay v. United States, 537 U.S.
522, 525 (2003). Weir's judgment of conviction became final on August 17, 2011,
when the time for filing an appeal expired. FED. R. APP. P. 4(b)(1). Weir had until
August 17, 2012, to file a timely Section 2255 motion to vacate.
However, Weir’s petition asserts that his sentence is due to be vacated under
Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015). He thus implicitly
argues that his motion is timely under Section 2255(f)(3).1,2 Johnson was issued
Weir is proceeding pro se. Accordingly, this court has construed his pleading liberally.
See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per
28 U.S.C. § 2255 reads in part, as follows:
(f) A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes
(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;
on June 26, 2015. Thus, under paragraph (f)(3) of Section 2255, the date by which
he must present his 2255 petition asserting Johnson is June 26, 2016. Weir’s
motion clearly was timely filed.3
II. The Motion Fails
Weir alleges that the district court improperly, in light of Johnson,
sentenced him as a“Career Offender within the meaning of U.S.S.G. §4B1.1 and §
4B1.2.” He argues that this was unconstitutional under Johnson because “his prior
drug convictions are no longer considered serious drug offenses for the career
However, he is incorrect. As explained herein, there is nothing about the
manner in which Weir’s sentence was calculated that is impacted by Johnson.
Further, the Eleventh Circuit has held that Johnson does not apply to the
Weir’s sentence for his (drug distribution) crimes was enhanced under
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
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.
June 26, 2016, is a Sunday, therefore the time period is extended to the next business
day, June 27, 2016.
U.S.S.G. § 4B1.1. It is undisputed that, prior to the instant offense, Weir had been
convicted of Unlawful Distribution of a Controlled Substance in Tuscaloosa
County Circuit Court, Case Numbers CC 99-0547 and CC 99-1809. Since the
instant offense is a controlled substance offense, the defendant was 18 years or
older at the time of the instant offense, and the defendant has at least two prior
felony convictions of controlled substance offenses, the defendant was properly
designated a career offender within the meaning of U.S.S.G. § 4B1.1 and § 4B1.2.
In Johnson, the Supreme Court analyzed the Armed Career Criminal Act
and held that the definition of “violent felony” under the residual clause of the Act
was unconsitutionally vague. Johnson said nothing about the definition of “serious
drug offense,” nor was any issue presented to the Johnson court about that
Weir’s sentence was not impacted by any residual clause definition of
“crime of violence,” which is the language found unconstutionally vague in
Johnson. Accordingly, the Motion is due to be DENIED and this case will be
DISMISSED WITH PREJUDICE. Additionally, the court finds that Weir is not
entitled to a certificate of appealability.
CERTIFICATE OF APPEALABILITY DENIED
A prisoner seeking a motion to vacate has no absolute entitlement to appeal
a district court's denial of his petition. See 28 U.S.C. § 2253(c)(1). Rather, a
district court must first issue a certificate of appealability (COA). Id. “A [COA]
may issue ... only if the applicant has made a substantial showing of the denial of a
constitutional right.” Id. at § 2253(c)(2). To make such a showing, defendant
“must demonstrate that reasonable jurists would find the district court's assessment
of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274,
282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the
issues presented were ‘adequate to deserve encouragement to proceed further,’ ”
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n. 4 (1983)). Weir has not made the requisite showing in these
Finally, because Weir is not entitled to a certificate of appealability, he is
not entitled to appeal in forma pauperis.
DONE and ORDERED this 1st day of August, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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