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United States of America

) C/A No. 3:05-00608
______________________________________ )

Antwan Laqual Walker


Antwan Laqual Walker (“Defendant”) seeks to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255. Defendant filed the within § 2255 motion on November 8, 2011.

ECF No. 150. On November 30, 2011, the United States of America (the “Government”) filed a

motion to dismiss. ECF No. 155. On December 7, 2011, Defendant filed a response. ECF No. 161. 1


On June 8, 2005, the Government filed a five-count indictment charging Defendant with

drug and firearms related offenses. ECF No. 12. On July 18, 2005, the Government filed an

information notifying Defendant that he would be subject to an enhanced sentence due to his June

6, 1995 conviction in South Carolina for “possession of cocaine-first offense.” ECF No. 31. On


January 31, 2006, Defendant pleaded guilty to possession with intent to distribute five grams or more

Although Defendant had already timely filed a response, on December 8, 2011, pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court issued an order advising
Defendant of the motion to dismiss procedure and the possible consequences if he failed to
respond adequately. ECF No. 162.

On June 6, 1995, in South Carolina General Sessions Court, Defendant was sentenced to
incarceration for a period of two years, suspended with eighteen months probation. ECF No.
81. On March 20, 1997, Defendant’s suspended sentence was partially revoked, and he was
sentenced to incarceration for a period of one year. Id.

of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B). ECF Nos. 69 & 70. Due

to Defendant’s prior drug conviction, his plea exposed him to a mandatory minimum sentence of 120

months incarceration under 21 U.S.C. § 841(b)(1)(B). On April 24, 2006, Defendant was sentenced


to incarceration for a period of 262 months, ECF No. 85, and judgment was entered on April 27,

2006, ECF No. 87. On April 2, 2006, Defendant filed a notice of appeal, and on June 29, 2006, the

Fourth Circuit issued its mandate following Defendant’s voluntary dismissal pursuant to Rule 42(b)



Defendant asserts that he is entitled to relief under § 2255 because the prior conviction

noticed in the Government’s information no longer, under United States v. Simmons, 649 F.3d 237

(4th Cir. 2011) (en banc), warrants an enhanced sentence. The Government asserts that Defendant’s

§ 2255 motion should be dismissed as time-barred. The court agrees.

A defendant has one year from the latest of (1) the date on which a judgment of conviction

becomes final; (2) the date on which an impediment to making a motion created by governmental

action in violation of the Constitution or laws of the United States is removed, if the defendant was

prevented from making a motion by such governmental action; (3) the date on which a 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

21 U.S.C. § 841(b)(1)(B) was amended by the Fair Sentencing Act of 2010, Pub. L. No.
111–220, 124 Stat. 2372, on August 3, 2010.

On April 12, 2010, the court granted the Government’s motion pursuant to Rule 35(b) of
the FEDERAL RULES OF CRIMINAL PROCEDURE, reducing Defendant’s sentence to
incarceration for a period of 140 months. ECF No. 144.


which the facts supporting the claim could have been discovered through the exercise of due

diligence. 28 U.S.C. § 2255(f).

Generally, when an appeal has been filed, judgment of conviction becomes final when the

ninety-day time period for filing a petition for a writ of certiorari seeking review of the appellate

court judgment expires. See Clay v. United States, 537 U.S. 522, 525 (2003); United States v.

Morris, 429 F.3d 65, 70 (4th Cir. 2005). The ninety-day period to petition for review begins when

the court of appeals issues its mandate in a case. See United States v. Torres, 211 F.3d 836, 837 (4th

Cir. 2000). There is no controlling authority addressing when a conviction becomes final if, as in

this case, the defendant filed an appeal and subsequently sought voluntary dismissal of that appeal.

The issue of whether a defendant who sought voluntary dismissal should benefit from having the

finality of his conviction delayed to account for the ninety-day petitioning period does not need to

be addressed here. Even if the conviction became final ninety days after the filing of the mandate,

see Latham v. United States, 527 F.3d 651 (7th Cir. 2008), rather than on the date the mandate was

filed, see United States v. Sylvester, 258 Fed. App’x 411 (3rd Cir. 2007), Defendant’s motion was

still untimely. The court of appeals filed its mandate on June 29, 2006, making September 27, 2006,

the deadline to file a petition for certiorari. As such, providing Defendant with the benefit of the

doubt, the deadline to file a § 2255 motion was September 27, 2007, one year later. Therefore,

Defendant’s November 8, 2011 motion was untimely.

Furthermore, there is no evidence that Defendant was prevented from filing a § 2255 motion

because of any governmental interference, and Defendant does not assert relief under a newly

recognized right made retroactively applicable to cases on collateral review. Defendant cites United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011), as a basis for relief. Simmons applied the Supreme


Court's decision in Carachuri–Rosendo v. Holder, 130 S. Ct. 2577 (2010), to hold that the analysis

of whether a prior conviction qualifies as a felony must focus on whether the defendant before the

court could have received a sentence exceeding twelve months given his aggravating circumstances

and criminal past, and not whether a hypothetical defendant could have. However, the Fourth Circuit

recently held that the Supreme Court’s decision in Carachuri–Rosendo, and its decision in Simmons

are not retroactive to cases on collateral review. United States v. Powell, 691 F.3d 554 (4th Cir.


2012). Finally, Defendant does not assert that his § 2255 motion relies on newly discovered

evidence. 6

Accordingly, Defendant’s § 2255 motion is time-barred.


For those reasons, Defendant’s motion to vacate, set aside or correct his sentence pursuant

to 28 U.S.C. § 2255 is DENIED. The Government’s motion to dismiss is GRANTED.

In any case, Defendant’s reliance on Simmons is misplaced, due to the fact that, under South
Carolina law effective at the time of his prior drug offense, Defendant not only could have
been, but was sentenced to a term of imprisonment exceeding twelve months for his drug
conviction, even though he received a suspended sentence. See S.C. Code Ann. §§
44–53–370(c) & (d)(1) (1994) (providing any person convicted of “knowingly or
intentionally” possessing “a controlled substance classified in Schedule I (b) and (c) which
is a narcotic drug or lysergic acid diethylamide (LSD) and in Schedule II which is a narcotic
drug is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than two
years or fined not more than five thousand dollars, or both[]”), amended by South Carolina
Laws Act 127 of 2005, § 4 (enlarging the maximum term of imprisonment for cocaine
possession to three years).

Neither side has raised the issue of whether Defendant’s motion might be saved by the
doctrine of equitable tolling, nor has the court found evidence of “extraordinary
circumstances” that would justify its application. See United States v. Sosa, 364 F.3d
507, 512 (4th Cir. 2004).



A certificate of appealability will not issue absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by demonstrating

that reasonable jurists would find that any assessment of the constitutional claims by the district court

is debatable or wrong and that any dispositive procedural ruling by the district court is likewise

debatable. Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003); Rose v. Lee, 252 F.3d 676, 683–84

(4th Cir. 2001). The court concludes that Defendant has not made the requisite showing.

Accordingly, the court DENIES a certificate of appealability.


Columbia, South Carolina
June 4, 2013

s/ Margaret B. Seymour
Margaret B. Seymour
Senior United States District Judge