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JUN 2 ù 2213

IN THE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT OF V IRG IN IA

R OAN O K E DIV ISION

JULIA C

BK

D W CL

UNITED STATES OF AM ERICA

W ILLIAM ALEM NDER SW ING, Il,

Defendant.

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Criminal Action No. 7:06CR00035
Civil A ction N o. 7:12CV 8051 1

M EM O M N DU M O PINIO N

By: Hon. Glen E. Conzad
Chief United States District Judge

W illiam A lexander Sw ing, II, a federal inm ate proceeding pro .K , filed this action as a

motion to vacate, set aside, or correct his sentence under 28 U.S.C. j 2255. The government has

filed a motion to dismiss. Swing has not responded and the time allotted for his response has

passed, making the m atter ripe for disposition. For the reasons that follow, the court concludes

that the defendant's claim is untim ely and is legally w ithout m erit. Therefore, the court grants

the governm ent's motion to dism iss and Swing's motion to vacate is denied.

Backzround

On April 13, 2006, Swing and co-defendant, Grant Eckmond Slaughter, were nnmed in a

seven-count indictment returned by a grand jury in the W estern District of Virginia. Counts One

and Six charged Swing with possession of firearms after having been convicted of a felony, in

violation of 18 U.S.C. jj 922(g)(1) and 924(e). Count Two charged him with interstate

transportation of stolen firearms, in violation of 18 U.S.C. jj 92241) and 924(a)(2). Counts

Tllree and Seven charged Swing with possessicm of stolen firearms, in violation of 18 U.S.C. jj

922() and 924(a)(2).

O n June 19, 2006, Sw ing entered pleas of guilty to Counts One and Tw o of the

indictm ent, puzsuant to a m itten plea agreem ent.

In accordance vvith the agreenaent, Syving

acknowledged that he was subject to a tifteen-year mandatory minimum sentence under the

Armed Career Criminal Act, 18 U.S.C j 924(e).

Prior to the sentencing hearing, a probation officer prepared a presentence investigation

report. The probation offcer detennined that Swing was subjed to a base offense level of 24 for

the tkearm offenses to which he pled guilty. Additionally, Swing received a four-level

enhancem ent for possession of betw een eight and tw enty-four firearm s, a tw o-level enhancem ent

for possession of stolen tirearms, a four-level enhancement for possession of firearm s in

connection with another felony offense--dnzg trafficking activities- and a three-level reduction

for acceptance of responsibility, resulting in a total offense level of 31. W hen com bined with a

crim inal history category of VI, Swing's total offense level gave rise to a range of imprisonm ent

of 188 to 235 m onths under the Sentencing G uidelines.

The probation officer further determ ined that Swing qualitied as an arm ed career

criminal, and that he was subject to an tnhanced sentence under 18 U.S.C. j 924/) and j 481.4

of the Sentencing Guidelines. The probation officer applied jj 4B1.4(b)(3)(A) and (c)(2), which

provide harsher penalties to those who possess a firearm in connection with a controlled

substance offense. Under these stctions, Swing's total offense level was 31, his criminal history

category was V1, and the resulting guidelines range was 188 to 235 m onths, tht sam e range that

was found to apply in the absence of the anned career criminal designation.

On Septem ber 15, 2006, the Honorable James A. Beaty, Jr., U .S. District Judge,

conducted Swing's sentencing hearing. At the start of the hearing, Swing confirm ed that he had

received the opportunity to review the presentence investigation report to his satisfaction.

(Sentencing Tr. at 2.) Swing's attorney also confirmed that Swing fully understood the pre-

sentence report and the impact the report would have on the sentencing hearing. (L4. at 3.)

Swing's attorney advised Judge Beaty that the defendant had no objections to the factual findings

m ade in the report or the probation oftk er's proposed application of the Sentencing Guidelines.

(L4.) Consequently, Judge Beaty adopted the reporq finding that Swing qualiûed as an armed

career criminal, and that his total offense level and crim inal history category gave rise to a

recommended term of imprisonment of 188 to 235 months. (L4.) Judge Beaty noted, however,

that the arm ed career crim inal designation had no substantial effect, since his crim inal history

and special offense characteristics resulted in the smne guidelines range level w ithout the anned

career criminal designation. (L4. at 4.) After considering the factors set forth in 18 U.S.C. j

3553($, Judge Beaty sentenced Swing to a prison term of 220 months.

On August 27, 2012, Swing executed the instant motion to vacate under 28 U.S.C. j

2255, and the motion was assigned to the undersigned district judge. The court filed the j 2255

motion conditionally, notified Swing that it appeared to be untimely under 28 U.S.C. j 2255(9,

and granted him the opportunity to subm it any additional evidence and m'gum ent on the issue of

tim eliness, which has been received. The governm ent has m oved to dism iss the m otion, arguing

that the asserted claim is without m erit. The defendant did not fsle a response to the

govelmm ent's motion within the allotted time period. The matter is now ripe for review.

D iscussion

In m oving to vacate his convictions and sentence, Sw ing argues that his sentence is no

longer valid in light of the United States Court of Appeals for the Fourth Circuit's decision in

United States v. Simmons, 649 F.3d 237 (4th Cir. 201 1). Upon review Of the record, the court

concludes that the m otion is untim ely, and that the defendant cannot rely on Sim mons as a

ground for collateral relief under j 2255.

A ccordingly, the court w ill grant the govenunent's

m otion.

Claims under j 2255 are timely if a person convicted of a federal offense files a j 2255

motion within one year, starting from the latest of the following:

(1) the date on which the judgment of conviction becomes tinal;
(2) the date on which the impediment to making a motion created by governmental action in
violation of the Constitution or law s of the U nited States is rem oved, if the m ovant w as
prevented from m aking a m otion by such governm ental 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 Suprem e Court and m ade 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. j 2255(9 (2012). Unless the defendant appeals, the defendant's conviction becomes

final when his opportunity to appeal passes. See Clay v. United States, 537 U.S. 522, 524-25,

(2003). W here the district court provides the defendant notice that the motion appears to be

untim ely and allow s the defendant an opportunity to offer any argument and evidence regarding

tim eliness, and the defendant fails to make the necessary showing, the district court may

summarily dismiss the motion. See Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002). Even

though the United States does not raise a statute of limitations defense in its motion to dism iss,

that motion also presents no suggestion that the United States intends to waive this deftnse.

Becaust Swing did not appeal the judgment against him on September 15, 2006, his

conviction becnm e final on September 29, 2006, when his opportunity for appeal expired.

l vjw s
,

Swing had until September 29, 2007 to file a timely j 2255 motion. Since he did not 15le his j

2255 motion until August 27, 2012, his motion is untimely tmder j 22554941).

Swing argues that his motion is timely under j 2255(9(3), because he filed his motion

within one year of the decision in Simm ons, which held that in deciding whether to enhance

ee . .

1 S Fed R A pp. P. 4(b)(1)(A) (former version, granting 10 days from judgment to tsle
notice of appeall; Fed. R. App. P. 26(a) (former version, excluding weekend days and holidays
from computation of tim e periods of 1 1 days or less and providing that a tim e period ending on a
weekend day or holiday would conclude on the next day that was not a weekend or a holiday).

4

federal sentences based on North Carolina convictions, a court m ust look to the actual, not

hypothetical, aggravating factors and criminal history of the defendant. See Simm ons, 649 F.3d

at 241. Swing claims that his j 2255 motion is timely under j 2255(943) because he tiled it

within one year of the Sim m ons decision. This claim is without merit. The Simm ons decision

calmot trigger the application of j 225549(3), because j 2255(9(3) only applies to claims based

on a right new ly recognized by a Suprem e Court decision. The Fourth Circuit, in Sim m ons,

followed the Supreme Court's decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010).

In order for Swing's j 2255 motion to be timely under this subsection, he needed to file his

motion within one year of the Carachuri-Rosendo decision. Carachuri-Rosendo was decided on

June 14, 2010. Since Swing did not tile his j 2255 motion until August 2012, he cannot rely on

that case to render his motion timely under j 2255(9(3).

The court further concludes that Swing cnnnot achieve j 2255 relief under Simmons,

even if Swing could demonstrate that his j 2255 motion is timely, or that the limitation period

should be equitably tolled. In United States v. Powell, 691 F.3d 554, 557 (4th Cir. 2012), the

Fourth Circuit explained that Sswell established legal nlles--old nzles- are applicable on

collateral review, while new rules generally are not.'' Only two categories of new legal rules are

applied on collateral review: (1) new substantive rules that tsalterll the range of conduct or class

of the persons that the law punishes,'' and (2) new procedural rules that ççare watershed rules of

crim inal procedure im plicating the fundam ental fairness and accuracy of the crim inal

proceeding.'' Powell, 691 F 3d. at 588 (internal quotation and citation omitted). In Powell, the

Fourth Circuit held that tdcarachtlri is a procedural rule . . . not retroactively applicable to cases

on collateral review.'' L1.I. at 560.

Because the Simm ons analysis is merely an extension of the Carachuri-Rosendo nzling,

the Sim m ons decision is a procedural rule that also cannot apply retroactively to cases on

collateral review. Thus, Swing cannot rely on Simmons to make his j 2255 motion timely under

any subsection of j 2255(9, nor can Swing rely on its holding as a ground for collateral relief

under j 2255 itself.

C onclusion

For the reasons stated, Swing's claim is untimely and not subject to review under j 2255.

Therefore, the court w ill grant the governm ent's m otion to dism iss and deny Sw ing's m otion to

vacate. Additionally, because Swing has failed to dem onstrate t(a substantial showing of the

denial of a constitutional right'' the court will deny a certificate of appealability. See 28 U .S.C.

j 2253(($.

The Clerk is directed to send certified copies of this mem orandum opinion and the

accompanying order to the defendant and al1 counsel of record.

ENTER: This 3.W day of June, 2013.

Chief U nited States D istrict Judge