United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OF OPINION
L.
SCOTT COOGLER UNITED STATES DISTRICT JUDGE
I.
Introduction
This is
a motion to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255 (“§ 2255”), filed
by Petitioner Brandon Allan Webb (“Webb”) on
April 17, 2019. (Doc. 1.) Webb challenges the 60-month
sentence of imprisonment imposed upon revocation of
supervised release. Pursuant to § 2255(b), this Court
has conducted a preliminary review of the motion and
determines that it is due to be denied and dismissed without
an evidentiary hearing.
II.
Background
On
December 1, 2010, Webb pled guilty to one count of conspiracy
to distribute and possess with the intent to distribute five
kilograms or more of a mixture and substance containing
cocaine hydrochloride in violation of 21 U.S.C. §§
846 & 841(A)(1). Webb was sentenced by this Court on July
13, 2011, to a term of imprisonment of 50 months to be
followed by a 60-month term of supervised release. Judgment
was entered the following day.
After
completing his prison term, Webb's supervised release
term commenced on March 26, 2014. On April 12, 2017, a United
States Probation Officer petitioner this Court to issue a
warrant for Webb's arrest based upon allegations that
Webb had been arrested on two separate occasions, once for
drug trafficking, and the other for public intoxication and
resisting arrest. The warrant was issued and Webb was
arrested on October 24, 2017. Following a hearing on January
19, 2018, this Court revoked Webb's supervised release
and remanded him to custody for a period of 60 months.
Judgment was entered on January 23, 2018. Webb did not
appeal.
Webb
signed the instant § 2255 motion on April 10, 2019, and
it was filed into the record on April 17, 2019.[1] Webb argues that
the 60-month sentence on revocation of supervised release was
illegal because it exceeded the maximum term allowed for the
revocation of supervised release under 18 U.S.C. §
3583(e)(3). He further argues that his counsel was
constitutionally ineffective for failing to recognize and
challenge this claimed error, and that “he was not
told/informed by his counsel that he would not be filing a
direct appeal . . . .” (Doc. 1 at 6.)
III.
Discussion
A.
The motion is time-barred
Webb's
§ 2255 motion is untimely on its face. The Antiterrorism
and Effective Death Penalty Act (“AEDPA”) creates
a strict one-year limitation for § 2255 petitioners,
such that Webb was obligated to file his motion no later than
one year after “the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(f)(1).
A federal criminal judgment that is not appealed becomes
final for the purpose of § 2255 when the time for filing
a direct appeal expires. See, e.g., Murphy v. United
States, 634 F.3d 1303, 1307 (11th Cir. 2011). Therefore,
Webb's judgment on revocation of supervised release
became final on February 6, 2018- 14 days after this Court
entered judgment on January 23, 2018. See Fed. R.
App. P. 4(b)(1)(A). In waiting to file the instant motion
until April 10, 2019, Webb has run afoul of the one-year
limitation period found in § 2255(f)(1).
The
statute provides for alternative triggers for the one-year
period where “the movant was prevented from making a
motion by . . . government action, ” where a
“right has been newly recognized by the Supreme Court
and made retroactively applicable, ” or where the claim
was based on newly-discovered facts. § 2255(f)(2)-(4).
Webb has not alleged, and there is no reason to believe, that
any of those circumstances are applicable here; therefore,
his AEDPA clock commenced running when his judgment of
conviction became final.
B.
The motion fails on its merits
Even if
the motion were timely-filed, it would fail on its merits.
First, Webb waived the sentencing-error claim by failing to
raise it on direct appeal. Claims not raised on direct appeal
may not be raised on collateral review unless the § 2255
petitioner demonstrates cause and prejudice. See United
States v. Frady, 456 U.S. 152, 167-168 (1982);
Bousley v. United States, 523 U.S. 614, 621-622
(1998). The exception to this general rule is a claim for
ineffective assistance of counsel. Massaro v. United
States, 538 U.S. 500, 504 (2003). For the reasons
explained below, Webb is incorrect that his sentence upon
revocation of supervised release should have been no more
than two years, thus his claim that his attorney was
constitutionally ineffective for failing to challenge his
sentence on this ground cannot lie. Nor is the
sentencing-error claim cognizable on collateral review.
Generally, unless the claimed error in a § 2255
proceeding involves a lack of jurisdiction or a
constitutional violation, relief is limited. United
States v. Addonizio, 442 U.S. 178, 185 (1979). An error
that is not jurisdictional or constitutional will form the
basis for § 2255 relief only where “the claimed
error constituted a fundamental defect which inherently
results in a complete miscarriage of justice.”
Id. at 185. Errors that seriously undermine the
validity of criminal proceedings have been held to constitute
a miscarriage of justice. See, e.g., Davis v. United
States, 417 U.S. 333, 346-47 (1974) (holding that a
prisoner's claim that he was convicted for a legal act
was cognizable under § 2255). Here, because the theory
underlying Webb's sentencing-error claim is erroneous,
the claim does not rise to the level of a miscarriage of
justice.
As
noted, the sentencing-error claim is meritless. Webb claims
that the statutory maximum term of imprisonment on revocation
of supervised release is two years, but he is incorrect.
Section 3583(e)(3), Title 18, U.S.C., limits a term of
imprisonment, upon revocation of supervised release, to five
years for a Class A felony, to three years for a Class B
felony, to two years for a Class C or D felony, and to one
year in any other case. Webb's original offense of
conviction, a violation of 21 U.S.C. §§ 846 &
841(A)(1), is a Class A felony. Thus, this Court lawfully
imposed a sentence of five years upon revocation of
supervised release. Relatedly, Webb's ineffective
assistance of counsel claim with regard to his attorney's
alleged failure to challenge the sentence imposed upon
revocation of supervised release fails because the argument
he ...