United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE.
the Court is Movant Roderick Harris' June 27, 2017 Motion
to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C.
§ 2255. (Cv. ECF No. 1.) The United States of America
responded on July 3, 2019. (Cv. ECF No. 6.) Harris has not
replied, and the time to do so has passed.
following reasons, the Court DENIES Harris' motion and
DENIES a certificate of appealability. Leave to appeal in
forma pauperis is DENIED.
January 2014, Harris pled guilty to conspiring to distribute
and possess with intent to distribute cocaine, in violation
of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(C). (Cr.
ECF No. 310.) The United States Probation Office deemed
Harris a career offender under Section 4B1.1 of the United
States Sentencing Guidelines based on four prior convictions:
(1) sale of a controlled substance; (2) aggravated burglary;
(3) possession of a controlled substance with intent to sell;
and (4) especially aggravated robbery. (See generally
Presentence Investigation Report.) On June 20, 2014, the
Court sentenced Harris as a career offender to a term of 139
months in prison and three years' supervised release.
(See Cr. ECF No. 438.) Harris did not appeal.
filed this § 2255 motion on June 27, 2017. He argues
that under United States v. Johnson, 135 S.Ct. 2551
(2015), he is not a career offender and that he is entitled
seeks relief under 28 U.S.C. § 2255. Under § 2255,
[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 . . . may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a).
succeed on a § 2255 motion, a prisoner in custody must
show ‘(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.'” McPhearson v.
United States, 675 F.3d 553, 558-59 (6th Cir. 2012)
(quoting Mallett v. United States, 334 F.3d
491, 496- 97 (6th Cir. 2003)).
movant files a § 2255 motion, the court reviews it 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[.]” Rules Governing Section 2255 Proceedings for
the U.S. District Courts (“§ 2255 Rules”) at
Rule 4(b). “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
§ 2255 movant is entitled to reply to the
government's response. Id. at Rule 5(d).
motion is untimely. Generally, a § 2255 motion must be
filed within a year of “the date on which the judgment
of conviction becomes final.” 28 U.S.C. §
2255(f)(1). The Court entered judgment on June 20, 2014. (Cr.
ECF No. 438.) Under Federal Rule of Appellate Procedure
4(b)(1)(A)(i), Harris had fourteen days after the entry of
the judgment, or until July 5, 2014, to file a notice of
appeal. Because Harris failed to file a notice of appeal, the
judgment became final on July 5, 2014. See Johnson v.
United States,457 Fed.Appx. 462, 464-65 (6th Cir.
2012). Harris ...