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Montgomery v. United States

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

February 27, 2018

KENNETH MONTGOMERY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAMUEL H. MAYS, JR.UNITED STATES DISTRICT JUDGE

         Before 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.)

         Also 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)[1].

         For the following reasons, Montgomery's § 2255 Motion is DENIED. Montgomery's motions to appoint counsel are DENIED as MOOT. His motions to compel are DENIED.

         I. Background

         On 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.)[2]

         At 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.)

         Montgomery 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.)

         Montgomery 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.)

         The 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 appeal.

         On February 28, 2014, Montgomery filed this § 2255 Motion. (ECF No. 1.)

         Between 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.)

         On 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 No. 20.)

         II. Timeliness

         A § 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).

         The government does not argue that any of Montgomery's grounds for relief are untimely. The government has waived the statute of limitations.

         III. ...


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