United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
James W. Snoke has filed a motion to request correction of
error (ECF No. 39) (“Motion to Request
Correction”) and an amended motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255
(ECF No. 44) (“Amended Motion to Vacate”) in the
above matter. The Government has filed a response (ECF No.
45) (“Gov't Resp.”). For the reasons that
follow, the Motion to Request Correction is denied as moot
and the Amended Motion to Vacate is denied and dismissed.
Background and Travel
having pled guilty to one count of bank robbery, in violation
of 18 U.S.C. § 2113(a), Snoke was sentenced on March 18,
2013, to 151 months' imprisonment, to run consecutive to
a six-month term for a violation of supervised release in an
earlier case, followed by one year of supervised release. A
special assessment and restitution were also imposed.
Judgment entered on March 26, 2013.
14, 2016, Snoke, proceeding pro se, filed a motion
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255 (ECF No. 30) based on the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). That motion was followed on June 24,
2016, by a counseled supplemental motion to vacate (ECF No.
32). By Order of Court dated June 29, 2016 (ECF No. 34), the
matter was held in abeyance pending clarification of the
applicability of Johnson to Snoke's motion. On
March 17, 2017, Snoke, through counsel, filed a motion to
dismiss (ECF No. 38) the motion to vacate, which was granted
by text order dated March 29, 2017.
filed a pro se Motion to Request Correction (ECF No.
39) on June 23, 2017. In an Order dated August 1, 2017 (ECF No.
41), the Court notified Snoke that it intended to treat the
motion as a petition for relief pursuant to 28 U.S.C. §
2255 unless Snoke indicated otherwise. Snoke responded by
filing an amendment to his motion “construed as:
petition for relief pursuant to 28 U.S.C. § 2255.”
(Am. Mot. to Vacate 1, ECF No. 44.) The Government filed its
objection (ECF No. 45) to the Amended Motion to Vacate on
October 27, 2017. No hearing is necessary.
2255 provides in relevant part:
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, 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, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). The main thrust of Snoke's
Amended Motion to Vacate is that his counsel was ineffective
for failing to contest the inclusion of two Rhode Island
state second degree robbery convictions for purposes of
calculating his criminal history, which resulted in his
designation as a career offender. (Am. Mot. to Vacate 2-38,
ECF No. 44.) The Government argues that the Amended Motion to
Vacate should be denied or dismissed for a number of reasons,
including that it is untimely and that, in any event, it
fails on the merits. (Gov't Resp. 2-6, ECF No. 45.)
Because the Court finds that the Motion to Request Correction
and the Amended Motion to Vacate are time-barred, it need not
address the Government's other arguments. See Bucci
v. United States, 809 F.3d 23, 28 (1st Cir. 2015)(noting
that because petition was second or successive petition that
did not meet requirements under 28 U.S.C. § 2255(h),
court need not reach Government's alternative arguments).
to 28 U.S.C. § 2255(f):
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 ...