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United States v. Penn

United States District Court, D. Nebraska

March 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TYRISS PENN, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Senior United States District Judge.

         This matter is before the court for initial review of the Defendant's Motion to Correct Sentence Under 28 U.S.C. § 2255, ECF No. 80 in No. 8:15cr76 and ECF No. 62 in No. 8:15cr79. Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of the Defendant's § 2255 Motion. Rule 4(b) states:

The judge who receives the motion must promptly examine it. If 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 and direct the clerk to notify the moving party. 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.

         BACKGROUND

         The Defendant pled guilty to Court I (Robbery in violation of 18 U.S.C. § 1951) and Count II (Brandishing a Firearm during a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A)) in case number 8:15cr76, and Count I (Brandishing a Firearm during a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A)) and Count II (Robbery in violation of 18 U.S.C. § 1951) in case number 8:15cr79. He was sentenced on September 26, 2016, to 12 months on Count I and 84 months on Count II in case number 8:15cr76, to run consecutive to each other, but concurrent to his sentence in case number 8:15cr79; and 84 months on Count I and 12 months on Count II in case number 8:15cr79, to run consecutive to each other, but concurrent to his sentence in case number 8:15cr76. He did not appeal.

         DISCUSSION

         I. Timeliness

         The Defendant filed his § 2255 Motion on June 22, 2018, [1] and asserts that it is timely because it was filed within one year of the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2017) (holding that the residual clause of the federal criminal code's definition of "crime of violence," incorporated into the Immigration and Nationality Act's definition of aggravated felony, was impermissibly vague in violation of due process).

         As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255 imposes a one-year statute of limitations on § 2255 motions, stating in pertinent part:

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 the ...

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