Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McNeal v. United States

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

June 23, 2017

BRATLEY D. MCNEAL Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DISMISSING § 2255 MOTION, DENYING MOTION FOR COUNSEL,, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE.

         Before the Court is the amended pro se 28 U.S.C. § 2255 motion of Petitioner, Bratley D. McNeal to vacate, set aside, or correct his sentence (the "Petition"). (Docket Entry ("D.E.") 7.) Respondent, the United States of America, responded on July 16, 2016, asserting that the Petition was untimely and should be dismissed. (D.E. 12.) Although McNeal requested and was granted a motion for extension of time to reply to the Government's response (see D.E. 14), he did not do so. Following a review of the record, the Court agrees that the motion is untimely.[1]

         On January 20, 2009, McNeal was indicted in Case Number l:09-cr-10004 on charges of being a felon in possession of a firearm, possession with the intent to distribute cocaine base, and possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C § 922(g), 21 U.S.C. § 841(a)(1), and 21 U.S.C. § 924(c)(1)(2), respectively. (United States v. McNeal, No. 1:09-cr-010004-JDB-l ("Cr. Case"), D.E. 1.) On March 30, 2010, he pleaded guilty as charged. (Cr. Case, D.E. 45.) The defendant received a total effective sentence of 120 months incarceration to be followed by a four-year term of supervised release. (Cr. Case, D.E. 51.) The Court sentenced Petitioner on July 19, 2010 (id.), and entered judgment that same day (Cr. Case, D.E. 52.)

         McNeal filed an initial petition challenging his conviction on January 17, 2014, over three years after judgment was entered in his criminal case. (D.E. 1.) Upon direction from the Court, he filed an amended petition on the official form on June 20, 2014. (D.E. 7.) Therein, he contended that he received ineffective assistance of counsel, that he was actually innocent of the charge of possessing a firearm in relation to a drug trafficking offense, and that his Fifth and Sixth Amendment rights were violated. (Id. at PagelD 56-59.) In a section labeled "Timeliness of Motion, " McNeal acknowledged that his conviction had become final over one year before the Petition was filed, but he asserted that it was not time-barred based on "newly discovered evidence of ineffectiveness of counsel." (Id. at PagelD 64.) The purportedly new evidence is the disbarment of his attorney, Javier M. Bailey, by the Tennessee Supreme Court in 2012. (Id.)

         Although Petitioner asserted that he was including a memorandum and affidavit with the amended motion, (id.), he failed to do so. However, he did submit a supporting affidavit when he filed his initial motion (D.E. 1-1), along with an exhibit detailing his attorney's disbarment (D.E. 1-2), which the Court has reviewed.

         In response, the United States asserts that McNeal has not "come forward with any colorable evidence . . . that the running of the § 2255 limitations period commenced later than the date on which his conviction became final." (D.E. 12 at PagelD 84.) Alternatively, Respondent argues that the Petition is substantively without merit. (Id. at PagelD 87-90.)

Section 2255(a) provides that
[a] prisoner in custody under sentence of a court . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, ... or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). The statute does not "encompass all claimed errors in conviction and sentencing." United States v. Addonizio, 442 U.S. 178, 185 (1979); Meirovitz v. United States, 688 F.3d 369, 370 (8th Cir. 2012). Rather, a petitioner must allege '"(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'" Shaw v. United States, 604 F.App'x 473, 476 (6th Cir.) (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)), cert, denied. 135 S.Ct. 2914 (2015).

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended 28 U.S.C. §§ 2244(b) and 2255 to limit a defendant to his direct appeal and one collateral attack, filed within one year of the date his conviction became final. 28 U.S.C. § 2244, et seq. Subsection (f) of § 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.