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Boateng v. United States

United States District Court, D. Maryland

June 13, 2016

NANA BOATENG, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. RDB-11-0423

          MEMORANDUM ORDER

          RICHARD D. BENNETT, District Judge.

         On 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).[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.

         Currently 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.

         ANALYSIS

         I. Petitioner's Second Motion to Vacate (ECF No. 259) is Untimely

         The 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 latest of:

(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 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 exercise of due diligence.

28 U.S.C. § 2255.

         Here, 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 sentencing.

         Petitioner "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.

         The 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 ...


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