United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, District Judge.
This matter is before the Court on movant Mijkia Carl Whittaker's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The government opposes the motion and movant has filed a reply, so the matter is fully briefed and ready for decision. The motion will be dismissed because movant's arguments are without merit and this action is time barred under 28 U.S.C. § 2255.
On January 14, 2004, movant was indicted one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On April 27, 2004, movant entered a plea of guilty. On October 29, 2004, the Court sentenced movant as an Armed Career Criminal to 188 months of imprisonment. Movant filed a direct appeal to the Eighth Circuit Court of Appeals, which reversed the sentence and remanded for resentencing. The Court entered an amended judgment on June 20, 2006, sentencing movant to 180 months of imprisonment, the mandatory minimum under 18 U.S.C. § 924(e). Movant did not appeal the amended judgment.
Claims for Relief
Movant filed the instant motion to vacate on June 12, 2014. Movant raises three grounds for post-conviction relief. First, movant claims that his classification as an Armed Career Criminal under 18 U.S.C. § 924(e) violates his Sixth Amendment rights under Alleyne v. United States , 133 S.Ct. 2151 (2014). Movant's second ground for relief is that the Court's reliance on his prior burglary conviction to classify him as an Armed Career Criminal violates the principles set forth in Descamps v. United States , 133 S.Ct. 2276 (2013). Third, movant asserts that he received ineffective assistance of counsel because his attorney failed to challenge his classification as an Armed Career Criminal based on the principles set forth in Alleyne and Descamps.
The government asserts that movant's motion to vacate his sentence under § 2255 should be denied because his claims are time barred. Movant responds that his motion to vacate is timely because it was filed within one year of the Supreme Court's decisions in Alleyne and Descamps, which he asserts apply retroactively to his case on collateral review.
Under 28 U.S.C. § 2255(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 ...