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Valerio v. United States

United States District Court, D. New Jersey

September 9, 2019

JEREMY D. VALERIO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          Renée Marie Bumb United States District Judge.

         I. INTRODUCTION

         Jeremy D. Valerio (“Petitioner”) moves to vacate, correct, or set aside his federal sentence pursuant to 28 U.S.C. § 2255. (ECF Nos. 1, 3.) The United States of America (“Respondent”) opposes the motion. (ECF No. 7.) Petitioner timely filed a reply brief. (ECF No. 8). For the reasons discussed herein, the Court will dismiss Petitioner's motion as time-barred. No. certificate of appealability shall issue.

         II. BACKGROUND

         On June 26, 2003, Petitioner pled guilty to conspiracy to discharge an explosive bomb during a drug trafficking crime in violation of 18 U.S.C. § 924(o) and discharging an explosive bomb during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(iii). (ECF No. 3 at 2.) At sentencing, the Court determined that Petitioner had two prior New Jersey convictions that constituted “crimes of violence.” (Id.) One of those convictions came on June 8, 1993, for Third Degree Burglary under N.J. Stat. Ann. 2C:18-2 and Aggravated Assault-Simple Assault Plus under N.J. Stat. Ann. 2C:12-1b(5). (Id.) The other was a May 6, 1997 conviction for Third Degree Burglary, also under N.J. Stat. Ann. 2C:18-2. (Id.) The Court also determined that the crime for which Petitioner was presently being sentenced constituted a “crime of violence.” (Id.) Therefore, the Court found that Petitioner was a career offender under the then-mandatory Sentencing Guidelines. (Id. at 2-3.) Resultingly, Petitioner's Guideline range was 271 to 308 months' imprisonment. (Id. at 3.) If not for the career offender finding, Petitioner's Guidelines range would have been 171 to 183 months' imprisonment. (Id.) The Court sentenced Petitioner to 271 months' imprisonment. (Id.)

         Petitioner did not file a direct appeal. (ECF No. 7 at 2.) He filed his first § 2255 motion on October 18, 2004, alleging that he received ineffective assistance of counsel during his plea and sentencing proceedings and that his sentence violated the Sixth Amendment under Blakely v. Washington, 542 U.S. 296 (2004). (Id.) The Court denied that motion on November 9, 2005. (Id. at 3.)

         On June 26, 2015, the Supreme Court decided Johnson v. United States. 135 S.Ct. 2551 (2015). Johnson, which will be discussed in more detail below, held that the residual clause of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. Id. at 2563. In 2016, the Supreme Court held that Johnson was retroactively applicable on collateral review. Welch v. United States, 136 S.Ct. 1257, 1264 (2016).

         On May 5, 2016, Petitioner filed an application for leave to file a second or successive § 2255 motion in the Third Circuit Court of Appeals. (ECF No. 1 at 5.) Initially, the Third Circuit stayed Petitioner's case pending further order of the Court. (Id., Attach. 2.) On November 2, 2017, the Third Circuit granted Petitioner permission to file a second or successive § 2255 motion. (ECF No. 3 at 1.) While the application for leave was pending, Petitioner filed the present motion on June 22, 2016. (Id.) Petitioner contends that the motion was timely because it was filed within one year of Johnson, pursuant to 28 U.S.C. § 2255(f)(3). (ECF No. 1 at 26.) For the reasons set out below, the Court rejects Petitioner's argument and dismisses the present motion as time-barred.

         III. STANDARD OF REVIEW

         Section 2255 permits a federal prisoner to attack the validity of their conviction or sentence “upon the ground that [it] was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255 (2018). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year limitation within which a § 2255 motion must be filed. See id.

         The limitation period shall run 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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