United States District Court, D. Maryland
L. Hollander United States District Judge
February 16, 2018, Petitioner Kenneth Graham filed a motion
to vacate under 28 U.S.C. § 2255 (ECF 172); see
also ECF 171. He also filed two supplements. ECF 174;
ECF 180 (collectively, the “Motion”). In its
opposition (ECF 176), the government asserts that the motion
is subject to dismissal because it is time-barred. ECF 176.
Graham filed a reply (ECF 179), seeking equitable tolling of
the limitations period.
court finds no need for a hearing. For the reasons stated
below, I shall dismiss the Motion. And, a certificate of
appealability shall not issue.
February 13, 2015, following a four-day trial, Graham was
convicted by a jury on a three-count superseding indictment
charging him with attempt to interfere with interstate
commerce by robbery, under 18 U.S.C. § 1951(a);
possession of and discharging a firearm, in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(c);
and possession of a firearm, by a convicted felon, under 18
U.S.C. § 922(g)(1). See ECF 132; ECF 133.
27, 2015, Graham was sentenced to serve a total term of 382
months in prison. See ECF 149; ECF 151. Graham
appealed his conviction to the Court of Appeals for the
Fourth Circuit on June 4, 2015. See ECF 154; ECF
155. The Fourth Circuit affirmed his conviction on April 4,
2016. ECF 165; ECF 166, see also United States v.
Graham, 643 Fed.Appx. 268 (4th Cir. 2016) (per curiam).
did not seek certiorari review in the Supreme Court.
Therefore, on June 3, 2016, his conviction became final for
purposes of the filing deadline for a motion to vacate
pursuant to 28 U.S.C. §2255. That is the date the time
for filing a petition for certiorari review expired. See
Clay v. United States, 537 U.S. 522, 527 (2003).
Graham's Motion was due to be filed in this court on or
before July 3, 2017.
February 16, 2018, the Clerk docketed correspondence from
Graham, inquiring about a motion to vacate. ECF 172. That
correspondence has been construed as the filing of a motion
under 28 U.S.C. § 2255. Graham subsequently supplemented
his submission. See ECF 174; ECF 180.
contends that his conviction under 18 U.S.C. § 924(c) is
invalid under Johnson v. United States, ___
U.S.____, 135 S.Ct. 2551 (2015), because Hobbs Act Robbery is
not a crime of violence. ECF 174 at 4. He also claims that
the enhancement of his sentence is invalid under
Johnson. Further, he contends that he was denied
effective assistance of counsel because his trial attorney
did not file any motions or conduct a reasonable
investigation, failed to properly cross-examine a government
witness who was a heroin addict, failed to object to dual
prosecutions by the federal and state governments for the
same crimes, and failed to negotiate a plea agreement. He
also complains that his lawyer failed to disclose exculpatory
evidence to him prior to trial. ECF 174 at 4-6.
28 U.S.C. § 2255(f), a post-conviction motion is subject
to a one-year limitation period, which runs 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