United States District Court, D. Maryland
RICHARD D. BENNETT, District Judge.
April 9, 2012, Petitioner Nana Boateng
("Petitioner" or "Boateng") plead guilty
before this Court to one count of Conspiracy to Distribute,
and Possess with Intent to Distribute Heroin, in violation of
21 U.S.C. § 846(a)(1). See 4/9/2012 Criminal
Minutes, ECF No. 135; J., p. 1, ECF No. 176. This Court
sentenced Boateng to a term of 84 months imprisonment. J., p.
2, ECF No. 176. Boateng did not appeal his sentence to the
United States Court of Appeals for the Fourth Circuit.
However, he did file a Motion to Vacate, pursuant to 28
U.S.C. § 2255, (ECF No. 227), more than one year after his
sentencing, arguing that he was entitled to a sentence
reduction because of subsequent modifications to the United
States Sentencing Guidelines that had been made retroactive.
While the Government opposed the extent of relief that
Boateng sought, the Government agreed that he was entitled to
a reduced sentence. See Gov't Response, ECF No.
247. Accordingly, via Order dated March 16, 2015 (ECF No.
248), this Court reduced Boateng's sentence from 84
months to 69 months imprisonment.
pending before this Court is Boateng's Second Motion to
Vacate, pursuant to 28 U.S.C § 2255, (ECF No. 259). The
parties' submissions have been reviewed, and no hearing
is necessary. See Local Rule 105.6 (D. Md. 2014).
For the reasons stated herein, Boateng's Second Motion to
Vacate, pursuant to 28 U.S.C § 2255, (ECF No. 259) is
DISMISSED as untimely.
Petitioner's Second Motion to Vacate (ECF No. 259) is
Government contends that Petitioner's Second Motion to
Vacate (ECF No. 259) is untimely. See Gov't
Response, p. 2-4, ECF No. 266. A Motion to Vacate, pursuant
to 28 U.S.C. § 2255, must be filed within one year of the
(1) the date on which a Petitioner's 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
(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
exercise of due diligence.
28 U.S.C. § 2255.
Petitioner's Judgment became final on July 9, 2012, the
date of his sentencing. See United States v.
Sanders, 247 F.3d 139, 142 (4th Cir. 2001) ("Since
[defendant] did not file a direct appeal, his conviction
became final for purposes of § 2255 subsection (1) on [the
date the court entered his judgment of conviction].").
Accordingly, Petitioner's initial Motion to Vacate (ECF
No. 227), filed on September 26, 2013, was untimely by more
than two months. The pending Second Motion to Vacate (ECF No.
259), filed on November 25, 2015, is also untimely as it was
filed more than three years after Petitioner's
"relies on the Actual Innocence Exception' to toll
the one year filing limitation." Second Mot. to Vacate,
p. 4, ECF No. 259. He contends that "[t]he facts on the
record prove that [he] is indeed actually innoce[nt] of the
sentencing enhancement and his term of incarceration was
greatly increased due to said error." Mem. Supp. Second
Mot. to Vacate, p. 11, ECF No. 259-1.
Supreme Court has made clear that "actual innocence
means factual innocence, not mere legal insufficiency"
with respect to the miscarriage of justice exception.
Bousley v. United States,523 U.S. 614, 623-24
(citing Sawyer v. Whitley,505 U.S. 333, 339
(1992)). "[T]enable actual-innocence gateway claims are
rare." McQuiggin v. Perkins,133 S.Ct. 1924,
1928 (2013). A credible claim requires reliable evidence
"whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence" that was not presented at trial. Schlup v.
Delo,513 U.S. 298, 323 (1995). "Without any new
evidence of innocence, even the existence of a concededly
meritorious constitutional violation is not in itself
sufficient to establish a miscarriage of justice that would
allow a habeas court to reach the merits of a barred
claim." Id., 513 U.S. at 315-17. "[A]
petitioner does not meet the threshold ...