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Marable v. United States

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

September 26, 2017

IVAN CHARLES MARABLE, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 05-10039-JDT-2

          ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          JAMES D. TODD UNITED STATES DISTRICT JUDGE

         Before the Court is a motion pursuant to 28 U.S.C. § 2255 filed by the Movant, Ivan Charles Marable. For the reasons stated below, the Court DENIES Marable's § 2255 motion.

         On May 15, 2005, a federal grand jury returned an eight-count indictment against Marable and a co-defendant, John Tims. Marable was charged in count one with conspiracy to possess with intent to distribute fifty grams or more of cocaine base (“crack” cocaine), in violation of 21 U.S.C. § 846. Counts two through eight each charged Marable with possessing crack cocaine with intent to distribute on a separate occasion, in violation of 21 U.S.C. § 841(a)(1). (No. 05-10039-JDT, Crim. ECF No. 1.)[1] On April 7, 2006, Marable entered a guilty plea, pursuant to a written plea agreement, to counts one and four of the indictment. (Id., Crim. ECF Nos. 36, 39 & 41.) At a hearing on November 2, 2006, the Court sentenced Marable to a 192-month term of imprisonment, to be followed by five years of supervised release. (Id., Crim. ECF No. 67.) Judgment was entered the same day. (Id., Crim. ECF No. 68.) Pursuant to a waiver in the plea agreement, Marable did not file an appeal. (Id., Crim. ECF No. 39 at 3.) On February 17, 2016, the Court denied Marable's motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2). (Id., Crim. ECF No. 82.)

         On August 19, 2014, Marable filed a § 2255 motion. (ECF No. 1.) The sole issue presented is whether trial counsel was ineffective in failing to object at sentencing to one of the prior offenses used to qualify Marable as a career offender under the U.S. Sentencing Guidelines, § 4B1.1. Marable contends that a 1997 Tennessee conviction for possession of marijuana with intent to manufacture, deliver or sell was actually a misdemeanor rather than a felony. The Court subsequently directed the United States to respond to the § 2255 motion (ECF No. 12), and an answer was filed on December 15, 2015. (ECF No. 16.)

         Pursuant to 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress 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 that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         “A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (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.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).

         After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Rule 4(b), Rules Governing § 2255 Proceedings (“§ 2255 Rules”). “If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.” Id. The movant is entitled to reply to the Government's response. Rule 5(d), § 2255 Rules.

         Marable's § 2255 motion is time barred. Twenty-eight U.S.C. § 2255(f) provides:

(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 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 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 ...

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