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Nevilles v. United States

United States District Court, W.D. Tennessee, Western Division

March 30, 2015

WILLIAM NEVILLES, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendants. Cr. No. 04-20070

ORDER DENYING MOTION UNDER 28 U.S.C. § 2255

S. THOMAS ANDERSON, District Judge.

Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, as amended, filed by Movant William Nevilles, Bureau of Prisons register number XXXXX-XXX, an inmate at the United States Penitentiary in Atlanta, Georgia. Nevilles asks this Court to vacate and correct his sentence. For the reasons stated below, the Court DENIES Nevilles's § 2255 Motion.

BACKGROUND

After being indicted on 3 counts in 2004, Nevilles executed a written plea agreement in which he pleaded guilty to being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g). In his plea agreement, Nevilles waived the right to appeal his conviction and any sentence within the applicable statutory maximum. A probation officer prepared a presentence report, and Nevilles objected to his classification as an Armed Career Criminal under 18 U.S.C. § 924(e). After a sentencing hearing, the district court sentenced Nevilles as an Armed Career Criminal to 200 months of imprisonment, followed by 3 years of supervised release.[1] The district court also dismissed the remaining two counts of the indictment.

Despite waiving his right to appeal his conviction and sentence, Nevilles filed an appeal of both his conviction and sentence with the Sixth Circuit.[2] On appeal, counsel for Nevilles filed a motion to withdraw and an accompanying Anders brief.[3] Nevilles responded with a motion for appointment of counsel and further contended that "(1) illegal prior convictions were used to enhance his sentence; and (2) the district court lacked jurisdiction because Congress did not properly enact the general criminal jurisdiction statute, 18 U.S.C. § 3231."[4] The Sixth Circuit explained that Nevilles had expressly waived his right to appeal his conviction and sentence absent the imposition of a sentence beyond the statutory maximum, but it also held that Nevilles's contentions lacked merit. In analyzing Nevilles's claim that he was improperly sentenced as an Armed Career Criminal based on void prior convictions, the court held that "Neville[s] undisputedly conceded in the district court that he could not collaterally challenge any of his prior convictions at sentencing" and affirmed his conviction and sentence.[5] The Sixth Circuit entered judgment on December 18, 2008, and denied Nevilles's petition for panel rehearing on March 17, 2009.

On September 10, 2012, Nevilles filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 1). Nevilles requests that this Court vacate and correct his sentence. The Court ordered Nevilles to submit an amended motion on the official form (ECF No. 3), and he did so on February 7, 2013. (ECF No. 5). Nevilles also filed a second amended complaint and requested an evidentiary hearing on October 11, 2013.[6] (ECF No. 7). Complying with the Court's order, the United States responded on December 4, 2013 (ECF No. 9), to which Nevilles filed his Reply. (ECF No. 11).

DISCUSSION

Nevilles's two amended complaints allege five grounds for relief from his sentence. First, Nevilles alleges that the district court "used facially invalid judgments for 18 U.S.C. § 924(e) enhancements." (ECF No. 5). Nevilles maintins that two state judgments used to enhance his sentence were void because they ran concurrently instead of consecutively in violation of Tennessee law. Second, Nevilles contends that Tennessee is not a "state" as defined by 18 U.S.C. § 921(a)(2), and therefore the district court acted unconstitutionally in using a prior Tennessee drug conviction to enhance his sentence. Third, Nevilles claims that he received ineffective assistance of counsel related to his sentencing proceedings. Fourth, Nevilles challenges the district court's determination that his conviction for aggravated assault under Tennessee law qualifies as a violent felony under 18 U.S.C. § 924(e) because the state statute encompasses reckless conduct. Finally, Nevilles argues that the district court engaged in "unconstitutional fact finding" because 18 U.S.C. § 924(e) was not listed as an offense in his indictment.

I. Statute of Limitations

In its Answer, the United States argues that the claims in Movant's § 2255 Motion are time barred. Section 2255 imposes a one-year period of limitation, which runs from the latest of the following:

(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 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 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.[7]

First, "for purposes of collateral attack, a conviction becomes final at the conclusion of direct review."[8] The Supreme Court has also held that, for purposes of post-conviction relief, "[f]inality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a ...


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