United States District Court, N.D. Mississippi, Oxford Division
GLEN H. DAVIDSON, Senior District Judge.
This matter comes before the court on the motion of Ben Lane to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has responded to the motion, and the matter is ripe for resolution. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be denied.
Facts and Procedural Posture
On May 26, 2004, Ben Lane was convicted by a jury of all counts charged against him in a three count indictment: (1) Conspiracy to Commit Armed Robbery of a Casino, (2) Aiding and Abetting the Armed Robbery of a Casino, and (3) Possessing, Carrying and Using a Firearm During and in Relation to and in Furtherance of a Crime of Violence. Based on the evidence presented at trial, the court determined that Lane had a base offense level of 20 for Counts One and Two, and that the following enhancements applied: three-level enhancement for the amount of money stolen from the casino; four-level enhancement for Lane's leadership role in the offense; two-level enhancement for using a minor to commit a crime; two-level enhancement for reckless endangerment resulting from the high-speed chase following the robbery of the casino; and another two-level enhancement for the carjacking that took place in furtherance of the armed robbery of the casino. This resulted in an adjusted offense level of 33, which yielded a suggested sentencing range of 135 to 168 months imprisonment.
For Counts One and Two the court sentenced Lane to the low end of the guideline range - 135 months imprisonment. The court also imposed a sentence often years imprisonment on Count Three of the Indictment - to run consecutive to Counts One and Two. The U.S. Probation Service had recommended a seven-year consecutive sentence on Count Three based on evidence presented that Lane brandished a firearm during the armed robbery. However, the court held that the evidence presented at trial showed that a firearm had been discharged by a co-conspirator during the armed robbery. The court also determined that the discharge of a firearm was reasonably foreseeable and done in furtherance of the conspiracy - and that a ten-year consecutive sentence for discharging a firearm was appropriate.
Lane appealed the judgment and sentence to the Fifth Circuit Court of Appeals, asserting two points of error: (1) that the evidence was insufficient to warrant conviction and that the district court therefore erred in denying Lane's motion for acquittal; and (2) that the law required that a jury or a court find proof beyond a reasonable doubt to support any enhancements or upward adjustments to his guideline range. On May 8, 2006, the Fifth Circuit rejected both of Lane's arguments and affirmed his conviction and sentence. Lane filed a Petition for Writ of Certiorari, which the United States Supreme Court denied on October 13, 2006.
On October 11, 2007, Lane filed a Motion for Extension of Time to file a § 2255 motion. The court denied the motion on October 23, 2007. Some six years later, on December 13, 2013, Lane filed the instant motion under 28 U.S.C. 2255, alleging that the U.S. Supreme Court decision in Alleyne v. United States , 133 S.Ct. 2151 (2013) required either that his convictions be vacated and his case remanded for resentencing, or that he be sentenced to time served and released.
Lane's arguments in the present motion are largely a recapitulation of those considered and rejected by the Fifth Circuit Court of Appeals - and thus procedurally barred. In addition, Lane's motion is barred by the one-year statute of limitations in § 2255. Lane argues that his motion is timely under the United States Supreme Court decision in Alleyne v. United States , which Lane believes provides new legal precedent and grounds for his petition that "were not previously presented because they were not cognizable at law." This argument is unavailing. Although Alleyne affects prosecutions under 18 USC 924(c) - and the way in which those cases must be charged and proven in future prosecution - it does not provide relief for Lane because it does not operate retroactively.
Statute of Limitations
28 U.S.C. § 2255(f) establishes a "1-year period of limitation" for motions under Section 2255. The limitations period in Section 2255(f) runs from "the latest of' four specified dates, including "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." 28 U.S.C. § 2253(f)(3); see Dodd v. United States , 545 U.S. 353, 357 (2005) (limitations period under Section 2255(f)(3) runs from the date of the Supreme Court decision "initially recogniz[ing]" the right in question). Section 2255 motions raising Alleyne claims are not timely under Section 2255(f)(3) because, as discussed below, the decision does not apply retroactively to cases on collateral review. Thus, Lane's petition is untimely; his conviction became final on October 13, 2006 - some six years before he filed the instant motion under 28 U.S.C. § 2255.
"[I]sues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 motions. United States v. Webster , 392 F.3d 787, 791 n. 5 (5th Cir. 2004). Lane's allegations attacking his convictions and sentence are the same ones raised and rejected during his direct appeal. They are thus barred from further ...