United States District Court, D. Colorado
ORDER DENYING 28 U.S.C. § 2255 MOTION
L. Kane, Judge
matter is before the Court on the pro se “2255
Motion to Vacate, Set Aside and Correct Sentence” (ECF
No. 175) filed November 28, 2016, by Defendant Cheston Jerome
Foster. The Court must construe the motion liberally because
Defendant is not represented by an attorney. See Haines
v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not be an advocate for a pro se
litigant. Hall, 935 F.2d at 1110. For the reasons
stated below, the Court will deny the motion.
March 20, 2014, Defendant entered a plea of guilty to assault
and robbery of a postal service employee and aiding and
abetting in violation of 18 U.S.C. §§ 2114(a) and
2. (See ECF No. 127). Prior to sentencing, the U.S
Probation Office prepared a Presentence Investigation Report
(“PSR”), which calculated Defendant's base
offense level as 20 under U.S.S.G. § 2B3.1.
(See ECF No. 140 at 5). Defendant's offense
level was increased by 2 levels because Defendant stole post
office property, and by 3 levels because Defendant brandished
or possessed a dangerous weapon. (Id.). Next,
Defendant's offense level was reduced by 3 levels for
accepting responsibility and assisting authorities.
(Id. at 5-6). Accordingly, Defendant's total
offense level was calculated to be 22. (Id. at 6).
The PSR further determined that, based on Defendant's
prior criminal convictions, he had a subtotal criminal
history score of 13. (Id. at 13). Under U.S.S.G.
§ 4A1.1(d), Defendant's criminal history score was
increased by 2 points because Defendant committed the instant
offense while under a criminal justice sentence for parole.
(Id.). Therefore, Defendant's total criminal
history score was 15, which establishes a criminal history
category of VI. (Id.). The PSR noted that the
maximum term of imprisonment for violating § 2114(a) was
25 years imprisonment. (Id. at 19). Based upon a
total offense level of 22 and a criminal history category of
VI, the guideline imprisonment range under the Sentencing
Guidelines was 84 to 105 months. (Id.). On June 17,
2014, the Court imposed a sentence of 84 months imprisonment.
(ECF No. 151). Judgment entered the same day. (Id.).
contends in the § 2255 motion that his counsel was
ineffective, and that his conviction must be vacated or
reduced in light of Johnson v. United States, 135
S.Ct. 2551 (2015). In Johnson, the United States
Supreme Court held that enhancing a sentence under the
“residual clause” of the Armed Career Criminal
Act (“ACCA”) violates a defendant's right to
due process because that portion of the statute is
unconstitutionally vague. See Id. at 2563. The Court
has carefully reviewed the record, and denies the § 2255
motion because the record conclusively shows that Defendant
is not entitled to relief.
to 28 U.S.C. § 2255(f), a one-year limitation period
applies to a motion to vacate, set aside, or correct a
federal sentence. That statute provides as follows:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run 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
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f).
claim alleging ineffective assistance of counsel is untimely.
As stated above, Defendant's judgment of conviction was
entered on the docket on June 17, 2014. Because Defendant did
not file a direct appeal, his conviction became final on July
1, 2014, fourteen days after the judgment was entered.
See United States v.
202 F.3d 1274 (10th Cir. 2000); Fed. R. App. P. 4(b)(1)(A)
and 26(a). The Court further finds that the one-year
limitation period in this action began to run on July 2,
2014, the day after Defendant's conviction became final,
and ran until it expired on July 1, 2015. Because Defendant
did not file his § 2255 motion until November 28, 2016,
the ineffective assistance of counsel claim is time-barred
under § 2255(f)(1).
claim asserted pursuant to Johnson is both misplaced
and untimely. Defendant argues that under Johnson
his sentencing range, calculated pursuant to the Sentencing
Guidelines, was incorrectly adjusted upward by 3 points
because he admitted to brandishing or possessing a dangerous
weapon. (See ECF No. 175 at 1, 4). As noted above,
Defendant was not sentenced as an armed career criminal under
the ACCA. Moreover, the PSR did not apply an enhancement that
has been implicated by Johnson. The PSR did not
consider Defendant to be an armed career criminal subject to
the ACCA's residual clause, nor did it consider him to be
a career offender subject to U.S.S.G. § 4B1.2's
residual clause. Defendant's base ...