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Graham v. United States

United States District Court, D. Maryland

October 16, 2018

KENNETH GRAHAM Petitioner
v.
UNITED STATES OF AMERICA Respondent

          MEMORANDUM

          Ellen L. Hollander United States District Judge

         On 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.

         The 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.

         I. Factual Background[1]

         On 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.

         On May 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).

         Graham 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.

         II. Discussion

         On 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.

         Graham 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.

         Under 28 U.S.C. § 2255(f), a post-conviction motion is subject to a one-year limitation period, which 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 ...

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