United States District Court, D. New Jersey
LARRY L. FULLENWIDER, Petitioner,
UNITED STATES OF AMERICA Respondent.
L. Fullenwider Federal Prison Camp Petitioner Pro se
Shver, Assistant U.S. Attorney U.S. Attorney's Office
District of New Jersey Attorneys for Respondent
L. HILLMAN, U.S.D.J.
Larry L. Fullenwider (“Petitioner”) filed a
Motion to Vacate, Set Aside or Correct a Federal Sentence
pursuant to 28 U.S.C. § 2255 (the “§ 2255
Motion”). ECF No. 1. Presently before the Court is
Respondent United States of America's
(“Respondent”) Amended Motion to Dismiss. ECF No.
reasons that follow, the Amended Motion to Dismiss will be
September 2, 2014, Petitioner pled guilty to conspiracy to
commit wire fraud in violation of 18 U.S.C. 1349. Plea
Agreement, United States v. Fullenwider, No.
1:10-cr-510 (D.N.J. Sept. 2, 2014), ECF No. 185. As part of
the plea agreement, Petitioner agreed to waive his appellate
and post-conviction rights in the event he received a
sentence of 46 months or less. Plea Hearing Tr., Fullenwider,
No. 1:10-cr-510 (D.N.J. Sept. 2, 2014), ECF No. 264 at 50:6
to 51:25; ECF No. 185 at p. 8 (waiving in Schedule A of plea
agreement appellate and post-conviction rights to challenge a
sentence within or below the range of a total offense level
of 21 (37-46 months)(United States Sentencing Guidelines
effective Nov. 1, 2013, Criminal History Category I)).
Honorable Jerome B. Simandle, U.S.D.J., conducted
Petitioner's sentencing hearing on May 13, 2015 and
sentenced Petitioner to a term of 46 months of imprisonment
with three years of supervised release. Judgment of
Conviction, Fullenwider, No. 1:10-cr-510 (D.N.J. May
13, 2015), ECF No. 281. Petitioner did not file a direct
appeal or a petition for writ of certiorari with the Supreme
Court of the United States. ECF No. 1 at 4.
filed a motion to vacate, set aside or correct his federal
sentence pursuant to 28 U.S.C. § 2255 on October 26,
2016. ECF No. 1. Petitioner filed his memorandum of law on
December 9, 2016, arguing that Amendment 794 of the
Sentencing Guidelines should be applied retroactively to his
sentence. ECF No. 3. Amendment 794 amends U.S.S.G. §
3B1.2 (Mitigating Role) and became effective on November 1,
2015, six months after Petitioner was sentenced. Id.
United States moves to dismiss the § 2255 motion as
time-barred, prohibited by the plea agreement, and as without
merit. ECF No. 8. Petitioner argues that his motion is timely
under § 2255(f)(3) because it was filed less than one
year after Amendment 794 became effective. ECF No. 5 at 3. He
asserts that the facts of his case support retroactive
application of the amendment to give him a minor role
adjustment. Id. at 9-13.
raises one ground for relief in his § 2255 motion: that
he is entitled to a downward adjustment pursuant to Amendment
794 of the Sentencing Guidelines due to his mitigating role
in the crime for which he was sentenced. Section 2255
provides in relevant part that:
[a] prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States ... may move the
court which ...