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Richard Harper v. United States of America

January 6, 2012

RICHARD HARPER, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Presently pending before the Court is Petitioner Richard Harper's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. No. 28.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the Court will deny Harper's motion as untimely.

I. BACKGROUND

On September 14, 2007, Harper pled guilty to Count One of a criminal information charging him with possession of contraband by an inmate in violation of 18 U.S.C. § 1791(a)(2). (Doc. Nos. 1, 3, 14.) The plea agreement provided, inter alia, that the United States would recommend "that the Court impose the minimum prison term within the applicable guideline range." (Doc. No. 3 at 7.) Prior to sentencing, the United States Probation Office prepared a presentence report, classifying Harper as a career offender pursuant to U.S.S.G. § 4B1.1 because his two prior felony convictions for crimes of violence (assault and second-degree robbery) and the instant conviction were deemed felonious crimes of violence. (Doc. No. 22 at 2; Doc. No. 28 at 14.) As a result, Harper's guideline sentencing range was thirty-seven to forty-six months. (Doc. No. 22 at 2; Doc. No. 28 at 14.)

Harper appeared for sentencing on April 17, 2008, and his attorney did not object to his classification as a career offender. The Court sentenced Harper to a term of imprisonment of thirty-seven months to be followed by a two-year term of supervised release. (Doc. No. 27.) Harper did not timely appeal his conviction or sentence.

On March 29, 2011, Harper filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Doc. No. 28.) In support of his motion, Harper claims that the United States Supreme Court's decision in Begay v. United States, 553 U.S. 137 (2008), renders him actually innocent of being a career offender because his conviction for the possession of a weapon in prison does not constitute a "crime of violence." (Id. at 4.) Harper further argues that his attorney rendered ineffective assistance in failing to argue at sentencing that Harper's conviction did not constitute a crime of violence for purposes of the career offender enhancement. (Id.) In the alternative, Harper claims that he is entitled to relief under 28 U.S.C. § 2241. (Id. at 11.)

On October 11, 2011, the United States filed a brief in opposition to Harper's motion. (Doc. No. 32.) Harper filed a reply brief on October 26, 2011. (Doc. No. 35.) The motion is now ripe for disposition.*fn1

II. STANDARD OF REVIEW

Under 28 U.S.C. § 2255(a), a federal prisoner may file a motion requesting that the sentencing court vacate, set aside, or correct the prisoner's sentence on the grounds 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." However, § 2255 does not afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993). "The alleged error must raise 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Furthermore, § 2255 generally limits a federal prisoner's ability to attack the validity of his sentence to cure jurisdictional errors and errors which rose to the level of a constitutional violation. United States v. Timmreck, 441 U.S. 780, 783-84 (1979).

The decision whether to hold a hearing when a prisoner moves to vacate a judgment under § 2255 is left to the sound discretion of the district court. Government of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Where the record affirmatively indicates that a petitioner's claim for relief is without merit, the claim may be decided on the record without a hearing. See Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); Page v. United States, 462 F.2d 932, 933 (3d Cir. 1972). Thus, if the record, supplemented by the trial judge's personal knowledge, conclusively negates the factual predicates asserted in support of a § 2255 motion, or if the movant would not be entitled to relief as a matter of law even if the factual predicates as alleged in the motion are true, it is not an abuse of discretion to elect not to conduct an evidentiary hearing. See Nicholas, 759 F.2d at 1075.

III. STATUTE OF LIMITATIONS

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") fixes a one-year limitations period for motions brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2255(f). Absent statutory or equitable tolling, the one-year limitations 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 ...


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