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United States v. Boxley

April 6, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
REGINALD BOXLEY, DEFENDANT.



The opinion of the court was delivered by: James D. Todd United States District Judge

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255 ORDER DENYING CERTIFICATE OF APPEALABILITY ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Defendant Reginald Boxley, Bureau of Prisons inmate registration number 71875-004, an inmate at the United States Penitentiary in Beaumont, Texas, filed a pro se motion pursuant to 28 U.S.C. § 2255 on November 16, 2005, along with a legal memorandum.*fn1

On November 16, 1998, a federal grand jury returned a single-count indictment charging Boxley with possession of 71 grams of cocaine base with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Boxley was not arrested for more than three years. The case proceeded to trial on July 8, 2002 and, on July 10, 2002, the jury returned a guilty verdict. The Court conducted a sentencing hearing on November 8, 2002, at which time Boxley was sentenced as a career offender to 360 months imprisonment, to be followed by a five-year period of supervised release.*fn2

Judgment was entered on November 13, 2002. The United States Court of Appeals for the Sixth Circuit affirmed. United States v. Boxley, 373 F.3d 759 (6th Cir. 2004), cert. denied, 543 U.S. 972 (2004).

On November 16, 2005, Boxley filed a motion pursuant to 28 U.S.C. § 2255 in which he raised the following issues:

1. Whether the Court abused its power at trial and at sentencing;

2. Whether the sentence imposed is unconstitutional in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005); and

3. Whether trial counsel rendered ineffective assistance, in violation of the Sixth Amendment.

The defendant's memorandum does not precisely track the issues raised in the motion but, instead, challenges the sufficiency of the evidence to support his conviction and argues that the determination that he is a career offender is invalid in light of Booker. The memorandum does not set forth the specific acts or omissions by trial counsel that form the basis for the ineffective assistance claim.

The first issue to be considered is the timeliness of this motion. Paragraph 6 of 28 U.S.C. § 2255 provides:

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 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, if that right has been newly recognized by the Supreme Court and made retroactively ...


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