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United States v. Dixon

June 3, 2009

UNITED STATES OF AMERICA
v.
DEMARK DIXON



The opinion of the court was delivered by: Dubois, J.

MEMORANDUM

I. PROCEDURAL HISTORY

On August 31, 1999, a grand jury in the Eastern District of Pennsylvania returned an Indictment charging defendant, DeMark Dixon, and a number of other defendants, with one count of conspiracy to transport stolen vehicles in interstate commerce, in violation of 18 U.S.C. § 371, and one count of selling a stolen motor vehicle that had moved interstate commerce, and aiding and abetting in the sale of a stolen motor vehicle that had moved in interstate commerce, in violation of 18 U.S.C. §§ 2312 and 2(a).

On November 6, 2000, Dixon pled guilty to the conspiracy charge. On October 16, 2001, this Court sentenced Dixon to 55 months imprisonment, three years of supervised release, and a special assessment of $100 special. Thirty months of the sentence was ordered to run concurrently with sentences Dixon was already serving for offenses in other jurisdictions; the balance of the sentence-25 months-was ordered to run consecutively to the previously imposed sentences.

Dixon appealed the sentence to the United States Court of Appeals for the Third Circuit. On appeal, Dixon's counsel filed an Anders Brief which, inter alia, specifically addressed the imposition of a partially consecutive sentence, and concluded there was no error in imposition of that sentence. United States v. Dixon, 57 Fed. Appx. 538, 538 (3d Cir. 2003). On February 14, 2003, the Third Circuit affirmed Dixon's conviction and sentence. Id. In affirming the sentence, the Third Circuit stated: "in view of these statements [the record at sentencing], and the specific reference to the factors set forth in the commentary to § 5G1.3 [of the United States Sentencing Guidelines], any argument that the District Court abused its discretion in ordering a partially consecutive sentence would be legally frivolous." Id. at 541.

On August 28, 2002, Dixon filed a pro se Letter/Motion in which he requested this Court to order the Bureau of Prisons: 1) to calculate his term of imprisonment by reference to his prior 120 month sentence, which was imposed by the United States District Court for the Eastern District of New York (Docket No. 97-CR-543) on September 23, 1999; and 2) to disregard his prior 147 month sentence, which was imposed by United States District Court for the Southern District of New York (Docket No. 97-CR-498) on February 26, 1998.*fn1 The Court denied that Letter/Motion by Order dated September 3, 2002, concluding that the Bureau of Prisons correctly calculated that 25 months of the sentence imposed by this Court must run consecutively to defendant's previous federal sentences-prior sentences that totaled 157 months incarceration.*fn2

Dixon did not appeal the Order of September 3, 2002.

On July 22, 2008, Dixon filed a Letter Memorandum for Modification of Sentence under 18 U.S.C. § 3582(c)(2) (Document No. 659). In that Letter Memorandum, Dixon requested that this Court order the entire sentence it imposed to run concurrently with the previously imposed federal sentences and release him from custody. By Order dated July 28, 2008, this Court denied the Letter Memorandum for Modification of Sentence for the reasons that were set forth in the Order of September 3, 2002. Dixon filed a timely notice of appeal, which the Third Circuit dismissed with prejudice on his Motion on April 21, 2009.

On April 15, 2009, defendant filed the pending Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody under 28 U.S.C. § 2255. In the Motion, he argues that counsel was ineffective at sentencing for failing to investigate the sentencing records in his criminal case in the Eastern District of New York and to advise this Court that ten months of that 120 month sentence was to run consecutively to his prior sentence. Specifically, defendant argues that counsel's failure to raise this issue resulted in incremental punishment for the relevant conduct common to the Eastern District of New York case and the instant case-car thefts-such that he was punished twice: the ten month consecutive sentence imposed in the Eastern District of New York, and the 25 month consecutive sentence imposed by this Court.*fn3

II. DISCUSSION

A. The Statute of Limitations for a Motion under 28 U.S.C. § 2255

28 U.S.C. § 2255(f) provides a one-year statute of limitations for § 2255 motions. The limitation period runs 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 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)(1)--(4). Because §§ 2255(f)(2), (3) and (4) are inapplicable to this case, the one-year statute of limitations for defendant's Motion began to run on the date on which the judgment of conviction became final. Under § 2255(f)(1), "a judgment of conviction becomes final when the time expires for filing a petition of certiorari contesting the appellate court's affirmation of the conviction." Clay v. United States, 537 U.S. 522, 525 (2003).

Dixon was sentenced on October 16, 2001. On October 19 and 23, 2001, he filed Notices of Appeal to the United States Court of Appeals for the Third Circuit, which affirmed the sentence and conviction by Opinion and Judgment dated February 14, 2003. Thereafter, Dixon had 90 days within which to file a petition for writ of certiorari, and his sentence and conviction became final on May 15, 2003-90 days after February 14, 2003.*fn4 Thus, Dixon had until May 15, 2004 to file his § 2255 Motion, and he failed to do so. The Motion was not filed until April 14, 2009, nearly five years too late.

Dixon argues, by implication, that the Motion is timely because it was filed only one week after the United States Court of Appeals for the Third Circuit dismissed his appeal of this Court's Order of July 28, 2008, denying his Letter Memorandum for a sentence reduction under 18 U.S.C. § 3582(c)(2). The short answer to that argument is that a motion under § 3582(c)(2) does not affect the finality of a sentence and judgment of conviction. 18 U.S.C. § 3582(b) makes it absolutely clear that the finality of a ...


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