United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge.
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.
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.
Defendant filed his § 2255 Motion on June 22, 2018,
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
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
(1) the date on which the judgment of conviction becomes
(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
(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