Hutson v. USA
Filing
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MEMORANDUM OF DECISION AND ORDER Dismissing With Prejudice Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 08/19/16. (Pro se litigant served by US Mail.)(emw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00176-MR
[CRIMINAL CASE NO. 1:11-cr-00057-MR-DLH-1]
LAWRENCE SALVATORE HUTSON, )
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
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________________________________ )
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on Petitioner’s Motion under 28,
United States Code, Section 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody [Doc. 1]. For the reasons that follow, the
Court dismisses the petition.
PROCEDURAL HISTORY
On January 30, 2012, pro se Petitioner Lawrence Salvatore Hutson
pleaded guilty in this Court, pursuant to a written plea agreement, to
knowingly receiving or distributing child pornography, in violation of 18
U.S.C. § 2252(a)(2). [Criminal Case No. 1-11-cr-57-MR-DLH-1 (“CR”), Doc.
20 at 2: Acceptance and Entry of Guilty Plea; Doc. 13: Plea Agreement].
In preparation for Petitioner’s sentencing hearing, the probation office
prepared a presentence investigation report (“PSR”), calculating a total
offense level of 42, and a criminal history category of I, which yielded an
advisory sentencing guidelines range of 360 months to life. [CR Doc. 40 at
¶ 81: PSR]. The PSR further noted, however, that because Petitioner faced
a term of imprisonment of not less than 15 years and not more than 40 years
under 18 U.S.C. § 2252A(b)(1), the guideline term of imprisonment was 360
to 480 months’ imprisonment.1 [Id. at ¶¶ 80, 81].
On April 24, 2013, this Court sentenced Petitioner to 432 months’
imprisonment, and to a term of supervised release for life. [CR Doc. 42:
Judgment]. Judgment was entered on May 1, 2013, and Petitioner did not
appeal. [Id.]. Petitioner placed the instant petition in the prison mailing
system on June 13, 2016, and it was stamp-filed in this Court on June 17,
2016. [Doc. 1]. In the § 2255 petition, Petitioner contends that he is entitled
to relief under Johnson v. United States, 135 S. Ct. 2551 (2015).
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The PSR concluded that Petitioner was subject to the mandatory sentencing range of
not less than 15 and not more than 40 years because he had a prior state court conviction
“relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving
a minor or ward, or the production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, or sex trafficking of children” §
2252A(b)(1). [CR Doc. 40 at 26].
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STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings, sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the record of prior proceedings”
in order to determine whether a petitioner is entitled to any relief. After
having considered the record in this matter, the Court finds that no response
is necessary from the United States. Further, the Court finds that this matter
can be resolved without an evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
DISCUSSION
On April 24, 1996, Congress enacted the Antiterrorism and Effective
Death Penalty Act (the “AEDPA”).
Among other things, the AEDPA
amended 28 U.S.C. § 2255 to include a one-year statute of limitations period
for the filing of a motion to vacate. The 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;
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(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.
28 U.S.C. § 2255(f)(1)-(4).
As noted, judgment was entered against Petitioner on May 1, 2013,
and Petitioner did not appeal.
His conviction, therefore, became final
fourteen days later when the time for filing a notice of appeal expired. See
United States v. Clay, 537 U.S. 522, 524-25 (2003) (when a defendant does
not appeal, his conviction becomes final when the opportunity to appeal
expires); Fed. R. App. P. 4(b)(1)(A). Petitioner placed the instant Section
2255 petition in the prison mailing system on June 13, 2016, well more than
one year after his conviction became final. See Houston v. Lack, 487 U.S.
266, 275-76 (1988) (noting that, under the prison mailbox rule, a prisoner’s
document is deemed filed on the date it is delivered to prison officials for
mailing). Because Petitioner did not file the instant Section 2255 petition
within a year of when his conviction became final, his petition is subject to
dismissal as untimely under Section 2255(f)(1).
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Petitioner contends, however, that the petition is timely under Section
2255(f)(3) because it was filed within one year of the Supreme Court’s
decision in Johnson. [Doc. 1 at 10]. Johnson, however, has no application
to Petitioner’s conviction and sentence. In Johnson, the Supreme Court held
that the residual clause of the definition of “violent felony” set forth in the
Armed Career Criminal Act (“ACCA”) is void for vagueness. Johnson, 135
S. Ct. at 2556, 2558. Here, Petitioner was convicted of knowingly receiving
or distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2).
Petitioner was not convicted under the ACCA, nor was his sentence
enhanced due to the existence of any prior “violent felony” convictions. The
Supreme Court’s ruling in Johnson is therefore wholly inapplicable to
Petitioner’s conviction and sentence for knowingly receiving or distributing
child pornography under 18 U.S.C. § 2252(a)(2).
CONCLUSION
For the reasons stated herein, the Court will dismiss the Section 2255
petition.
The Court finds that the Petitioner has not made a substantial showing
of a denial of a constitutional right. See generally 28 U.S.C. § 2253(c)(2);
see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy
§ 2253(c), a “petitioner must demonstrate that reasonable jurists would find
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the district court’s assessment of the constitutional claims debatable or
wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)). Petitioner
has failed to demonstrate both that this Court’s dispositive procedural rulings
are debatable, and that his Motion to Vacate states a debatable claim of the
denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). As a result, the Court declines to issue a certificate of appealability.
See Rule 11(a), Rules Governing Section 2255 Proceedings for the United
States District Courts, 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s Motion to Vacate
[Doc. 1] is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: August 19, 2016
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