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Rich v. United States

United States District Court, D. Maryland

July 2, 2018

DAVID RICH, Petitioner
v.
UNITED STATES, Respondent

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

         On October 1, 2009, a jury found David Rich guilty of conspiracy to distribute and possession with intent to distribute heroin, in violation of 21 U.S.C. §846, possession with intent to distribute heroin, in violation of 21 U.S.C. §841(a)(1) & (b)(1)(B); possession of a firearm in furtherance of drug trafficking crime, in violation of 18 U.S.C. § 924(c); possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and assault on law enforcement officers, in violation of 18 U.S.C. § 111.

         On April 22, 2010, Rich was sentenced to life imprisonment plus twenty years. Rich filed an appeal, and the Fourth Circuit affirmed his conviction in United States v. Rich, 434 Fed.Appx. 224 (4th Cir. 2011).

         On November 15, 2013, Rich was resentenced to a total term of 360 months of imprisonment, after seeking relief pursuant to 28 U.S.C. § 2255, because one of his prior felony drug offenses was vacated on state coram nobis review. Rich filed an appeal, and the Fourth Circuit affirmed his amended judgment on July 2, 2014. United States v. Rich, 577 Fed.Appx. 234 (4th Cir. 2014).

         Rich's sentence was reduced on November 3, 2016, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the U.S. Sentencing Guidelines, to a total term of 300 months of imprisonment. (ECF 127)

         Pending is Rich's Motion to Vacate pursuant to 28 U.S.C. § 2255, which he filed on December 18, 2017. (ECF 130). Rich claims that he is entitled to habeas relief pursuant to Dean v. United States, 137 S.Ct. 1170 (2017) and Mathis v. United States, 136 S.Ct. 2243 (2016). This is Rich's first § 2255 motion filed since his amended judgment was issued on November 15, 2013 (ECF 100); therefore, it is not second or successive. See In re Gray, 850 F.3d 139, 143 (4th Cir. 2017) (“when a habeas petition is the first to challenge a new judgment, it is not second or successive within the meaning of § 2244(b)”) (citing Magwood v. Patterson, 561 U.S. 320 (2010)). See also In re Rich, No. 17-305 (4th Cir. July 7, 2017) (denying Rich's request for authorization to file a second or successive §2255 motion as unnecessary).

         Respondent has filed an Answer seeking to dismiss Rich's Motion as time-barred. (ECF 131) Rich has filed a Reply with supplements. (ECF Nos. 133, 134, 135). The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons to follow, Rich's Motion to Vacate, pursuant to 28 U.S.C § 2255, (ECF No. 130) is DISMISSED as untimely.

         ANALYSIS

         Under the provisions of 28 U.S.C. §2255, the limitation period runs 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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