Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ward v. United States

United States District Court, E.D. Missouri, Eastern Division

January 23, 2018

CORTNEY WARD, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The motion appears to be time-barred, [1] as well as non-cognizable. Movant will be asked to show cause why this matter should not be dismissed.

         Background

         On October 13, 2015, movant pled guilty to two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See United States v. Ward, 4:15CR38 AGF (E.D. Mo.). The Court sentenced petitioner to a prison term of seventy (70) months' imprisonment (Counts I and II), to be served concurrently, and two years' of supervised release. Petitioner's federal sentence was to run consecutively to any sentences imposed in the Circuit Court for St. Louis under Docket Nos. 1422-CR00112-01 and 1522-CR01777-01. Movant did not appeal his federal conviction or sentence.

         Discussion

         A. Movant's § 2255 Claims Are Time-Barred

         In the instant motion, movant asserts three grounds for relief. Movant argues “18 U.S.C. Appx. 4B.1.1 Criminal History - Sentence for Certain non-violent felony specified offenses are never counted - 4A.1.2. (c)2.” Movant appears to be mixing two arguments in his first ground for relief. He first claims that nothing in § 4A1.1 of the United States Sentencing Guidelines (“U.S.S.G.”) allows the Court to assess criminal history points for prior non-violent offenses. Movant is incorrect.

         There is no provision in the U.S.S.G. prohibiting the assessment of criminal history points for prior non-violent offenses. A review of the Presentencing Report in movant's criminal action shows that movant's total prior criminal convictions resulted in a subtotal criminal history score of five (5).[2] However, because he committed his crime in federal court while under a criminal justice sentence for state court Docket No. 1422-CR00112-01, two (2) points were added to movant's criminal history score, making his total score seven (7). See U.S.S.G. § 4A1.1(d). As such, movant's criminal history was a Category IV, resulting in a Total Offense Level Score of 23 and an advisory guideline range in the U.S.S.G. of 70-87 months' of imprisonment.

         In asserting that his sentence should not be enhanced based on a prior non-violent criminal offense, movant also appears to be arguing that he is entitled to relief under the Supreme Court case of Johnson v. United States, 135 S.Ct. 2551 (2015).[3] In Johnson, the Supreme Court held that the residual clause in the Armed Career Criminal Act (“ACA”), 18 U.S.C. § 924(e), was void for vagueness. The Supreme Court decided Johnson on June 26, 2015. Johnson does not apply to movant as he was not sentenced under the Armed Career Criminal Act. Moreover, any claims movant wanted to bring in his § 2255 under Johnson would have had to have been brought no later than October 23, 2016, or within one year of the date of the time in which he was sentenced.[4]

         A district court may consider, on its own initiative, whether a habeas action is barred by the statute of limitations. Day v. McDonough, 547 U.S. 198, 210 (2006). However, before dismissing a habeas action as time-barred, the court must provide notice to the movant. Id.

         A review of the instant motion indicates that ground one of movant's motion appears to be time-barred under 28 U.S.C. § 2255(f) and is subject to summary dismissal. As a result, the Court will order movant to show cause why this action should not be summarily dismissed as time barred.

         Prior to doing so, however, the Court will address the remaining grounds of movant's motion to vacate.

         B. Movant's § 2241 Claims Are Subject to Dismissal

         Movant asserts that he would like his remaining time in custody to be spent in federal prison, and he asks for his state sentences in Docket Nos. 1422-CR00112-01 and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.