United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR.UNITED STATES DISTRICT JUDGE
the Court is Petitioner Kenneth Montgomery's Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255
Motion”), filed on February 28, 2014. (§ 2255
Mot., ECF No. 1.) Montgomery moved to supplement his §
2255 Motion on February 3, 2015, which the Court granted on
April 7, 2015. (ECF Nos. 5-6.) The government responded to
the § 2255 Motion and supplement on July 1, 2015. (ECF
No. 11.) Montgomery again moved to supplement his § 2255
Motion on July 31, 2015 and August 1, 2016, seeking relief
under Johnson v. United States, 135 S.Ct. 2551
(2015). (ECF Nos. 12 & 17.) The Court granted
Montgomery's motions to supplement on January 24, 2018.
(ECF No. 25.) The government responded on February 16, 2018.
(ECF No. 28.)
before the Court are Montgomery's three motions to
appoint counsel (ECF Nos. 13, 15, 16), and two motions to
compel the government to respond to Montgomery's motion
addressing jail credit, filed in his criminal case (ECF Nos.
21-23; Cr. ECF No. 87).
following reasons, Montgomery's § 2255 Motion is
DENIED. Montgomery's motions to appoint counsel are
DENIED as MOOT. His motions to compel are DENIED.
September 22, 2010, a grand jury returned an indictment
charging Montgomery as a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). (Cr. ECF No. 1.)
Montgomery pled guilty to that charge on August 4, 2011. (Cr.
ECF No. 45.) During the plea colloquy, the government stated
that its proof would have been:
that on February 5th, 2010, officers responded to a domestic
violence call. Spoke with Kerry Granderson there who stated
that the defendant was involved in an altercation with his
sister and that altercation escalated to the point where the
defendant pointed a gun at him.
When the officers arrived at the scene . . . they observed
the defendant in a green Cadillac, attempting to leave the
scene. After he exited the vehicle, he told officers that
there was a gun under the seat of his vehicle. That gun is
the same gun that was identified in the indictment, a Rohm
.38 caliver revolver.
Defendant's record was checked. He was a convicted felon
at the time.
The gun passed through interstate commerce. And these events
occurred in the Western District of Tennessee.
(Hr'g Tr., ECF No. 68 at 191.)
sentencing, the Court determined that Montgomery was subject
to a base offense level of 24 as a career offender under
§ 2K2.1(a)(2) of the U.S. Sentencing Commission
Guidelines (the “U.S.S.G.”) because he had at
least two felony convictions of either a crime of violence or
a controlled substance offense. (Presentence Investigation
Report (“PSR”) ¶ 16.) A “crime of
violence” for purposes of § 2K2.1(a) is defined by
U.S.S.G. § 4B1.2(a). U.S.S.G. § 2K2.1, cmt. note 1.
Montgomery's predicate convictions were (1) a 2000
conviction for Tennessee “Criminal Attempt, to Wit:
Aggravated Robbery” and (2) a 2009 conviction for
Tennessee “Possession of a Controlled Substance with
Intent: Marijuana.” (PSR ¶¶ 16, 30, 47.)
Montgomery was also subject to a four-level enhancement under
§ 2K2.1(b)(6) for use or possession of a firearm or
ammunition in connection with another felony offense.
(Id. ¶ 17.)
was sentenced to 100 months in prison to run concurrently
with state court sentences in case numbers 08-07811 and
08-7812. (Judgment, Cr. ECF No. 56.) He was also sentenced to
two years on supervised release. (Id.)
appealed his sentence, challenging a condition of release
that was included in the written judgment but not pronounced
by the court at sentencing. (Cr. ECF No. 72.) On appeal, the
government moved to vacate Montgomery's sentence and
remand for resentencing. (Id.) The Sixth Circuit
vacated the sentence and remanded for resentencing on March
27, 2013. (Id.)
Court entered a Corrected Judgment on April 12, 2013. (Cr.
ECF No. 76.) That judgment maintained the same terms of
imprisonment and supervised release, but altered the
conditions of release. (Id.) Montgomery did not
February 28, 2014, Montgomery filed this § 2255 Motion.
(ECF No. 1.)
November 2015 and August 2016, Montgomery filed three motions
to appoint counsel. (ECF Nos. 13, 15, 16.) On December 30,
2016, and on June 26, 2017, Montgomery filed motions to
compel the government to respond to Montgomery's motion
addressing jail credit, filed in his criminal case. (ECF Nos.
21-23; Cr. ECF No. 87.)
December 27, 2016, the Court entered an order holding this
case in abeyance pending the Supreme Court's decision in
Beckles v. United States, 137 S.Ct. 886 (2017). (ECF
§ 2255 motion and any amendments or supplements to it
must be filed within § 2255(f)'s one-year statute of
limitations. See, e.g., Berry v. United
States, No. 2:14-CV-02070-STA-CGC, 2017 WL 401269, at
*10 (W.D. Tenn. Jan. 30, 2017). Under § 2255(f)(1), a
§ 2255 motion must be filed within one year of
“the date on which the judgment of conviction becomes
final.” A conviction becomes final upon conclusion of
direct review. Sanchez-Castellano v. United States,
358 F.3d 424, 426 (6th Cir. 2004). Under § 2255(f)(3), a
petitioner may also bring a § 2255 motion within one
year of “the date on which the right asserted was
initially recognized by the Supreme Court.” “The
§ 2255(f) statute of limitations is not jurisdictional,
however, and the Government can waive it.” Lurry v.
United States, No. 09-CR-20312-SHM, 2017 WL 3092088, at
*5 (W.D. Tenn. July 20, 2017).
government does not argue that any of Montgomery's
grounds for relief are untimely. The government has waived
the statute of limitations.