United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Movant Leo Valera Bush's
Motion to Vacate, Set Aside or Correct Sentence filed
pursuant to 28 U.S.C. § 2255. (Doc. 1.) Respondent
United States of America responded (Doc. 4), and Movant filed
a reply (Doc. 7), and, with leave of Court, filed a
supplemental reply (Doc. 10).
December 13, 2012, Movant was indicted with one count of
conspiring to possess with intent to distribute more than
five kilograms of cocaine and conspiring to distribute
cocaine in violation of 21 U.S.C. §§ 841 and 846.
(United States v. Bush, No. 4:12-cr-00446-JAR-1,
Doc. 1.) On September 10, 2014, Movant pleaded guilty
pursuant to negotiated plea agreement. (Bush, Doc.
Presentence Report was prepared and Movant accepted it.
(Bush, Docs. 129, 131.) Movant was assigned a
criminal history category of VI based on four prior
convictions for possessing or distributing drugs and based on
convictions for evading arrest and driving on a suspended
license. (Bush, Doc. 135 at 9-12.) His criminal
history category of VI combined with a total offense level of
29 to yield a guidelines range of 151-188 months in prison.
(Id. at 19.) The Court departed downward to sentence
Movant to a term of 144 months in prison. (Bush,
Docs. 139, 140.) Movant did not appeal.
27, 2016, the Court received Movant's § 2255 Motion.
(Doc. 1.) Movant listed December 14, 2015, as the date he
signed and deposited his Motion. (Id. at 11.) In it,
he advances two instances of ineffective assistance of trial
counsel. (Doc. 1.) First, he argues that counsel was
ineffective for failing to argue that Movant's enhanced
sentence violated the Supreme Court's decision in
Alleyne v. United States, 570 U.S. 99, 117 (2013),
which held that aggravating facts that increase a
defendant's mandatory minimum sentence are elements of
the crime which must be proved to the jury. (Id.)
Relatedly, Movant argues that counsel failed to challenge the
factual basis of his prior convictions. (Id.)
Respondent argues that the postmark indicates that the motion
is time-barred and that, in any event, Movant's claims
fail on their merits. (Doc. 4.) Movant replies that he should
not be penalized for delays in the prison mail system. (Docs.
§ 2255 movant is entitled to relief when his sentence
“was imposed in violation of the Constitution or laws
of the United States.” Sun Bear v. United
States, 644 F.3d 700, 704 (8th Cir. 2011) (citing 28
U.S.C. § 2255). The movant must show that the
“claimed error constituted ‘a fundamental defect
which inherently results in a complete miscarriage of
justice.'” Id. (quoting United States
v. Addonizio, 442 U.S. 178, 185 (1979)).
prove ineffective assistance of counsel, a movant must show
that his attorney's performance was objectively
unreasonable, and that he was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To establish prejudice, the movant must show “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. The standard
is “highly deferential.” Id. at 689.
motion to vacate filed under § 2255 is subject to a
one-year period of limitations. See 28 U.S.C. §
2255(f). The limitations period begins to run on the latest
of: (1) “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review;” (2) the date on which an
impediment to filing a federal habeas petition is removed by
the state; (3) the date on which a new constitutional right
asserted is recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) “the date on which the factual predicate of the
claim or claims presented could have been discovered through
the exercise of due diligence.” 28 U.S.C. §
pleaded guilty on September 10, 2014. (Bush, Doc.
127.) Judgment was entered on December 11, 2014, and Movant
did not appeal. (Bush, Doc. 139.) His conviction
therefore became final fourteen days later, on December 26,
2014, when the time to appeal expired. 8th Cir. R.
4(b)(1)(A)(i). Accordingly, the one-year limitations period
ended on December 26, 2015. 28 U.S.C. § 2255(f)(1). The
Court received Movant's filing on June 27, 2016. (Doc.
represents to the Court that he signed his Motion and placed
it into the prison mail system on December 14, 2015, two
weeks before the limitations period ran. (Id. at
11.) He asserts that the delay is attributable to the
internal mismanagement of legal mail by ...