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United States v. Perrette

United States District Court, S.D. Mississippi, Southern Division

May 18, 2017

UNITED STATES OF AMERICA
v.
JOHN ASHLEY PERRETTE

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is the Motion [572] along with a supporting Memorandum [573] of Defendant John Ashley Perrette (“Defendant” or “Perrette”) to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255. After due consideration of the Motion, related pleadings, the record, and relevant legal authority, the Court is of the opinion that Perrette is not entitled to relief and that his § 2255 Motion should be denied in accordance with Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts (the “Section 2255 Rules”) without the requirement of an answer by the United States Attorney and without an evidentiary hearing.

         I. FACTS AND PROCEDURAL HISTORY

         On April 17, 2012, a Grand Jury returned a 30-count Indictment [3] against Perrette and 14 co-Defendants. On August 8, 2012, Perrette pleaded guilty to Counts 1, 16, and 30 of the Indictment [3].

         On November 7, 2012, the Court sentenced Perrette to a term imprisonment of 16 months as to each of Counts 1 and 30 to run concurrently with each other, and to a term of imprisonment of 120 months as to Count 16, to run consecutively to the terms imposed on Counts 1 and 30. See Nov. 7, 2012, Minute Entry. The Judgment was entered on November 13, 2012. J. [365] at 1-6. Perrette did not appeal.

         In preparation for sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR”). See PSR [395] (filed under seal). The PSR disclosed that, with respect to Perrette's criminal history, he had two prior adult convictions for which he was assessed criminal history points. The convictions at issue were for a DUI 1st Offense and a Simple Assault charge, both in Gulfport Municipal Court, Gulfport, Mississippi. Pursuant to United States Sentencing Guideline § 4A1.1(c), the PSR assessed one point for each of these convictions for a total of two criminal history points. Pursuant to USSG Chapter 5, Part A, a criminal history score of two established Perrette's criminal history category of II.

         With respect to the prior DUI charge, the PSR reflected that Perrette had been arrested on March 11, 2008, at the age of 20, and had pleaded guilty on July 22, 2008. Perrette was assessed a $151.00 fine and directed to attend the Mississippi Alcohol Safety Education Program (“MASEP”) and Victim Impact Panel (“VIP”). According to Perrette, the charge was supposed to be non-adjudicated, or adjudication was to be withheld and not used against him in any future proceedings. Mem. [573] at 12.

         On April 20, 2017, Perrette placed the present Motion to Vacate pursuant to 28 U.S.C. § 2255 in the prison mailing system, Mot. [572] at 12, and the Motion was filed of record on April 24, 2017. Perrette asks the Court to amend his sentence on grounds that his prior DUI conviction has now been non-adjudicated after he completed MASEP and VIP, such that he would now only be subject to one criminal history point, placing him into a lower criminal history category with a lower imprisonment range under the Sentencing Guidelines. Mem. [573] at 12-16. Perrette maintains that his DUI conviction was “invalidated, ” Mot. [572] at 4, and asks the Court to resentence him to a total of 121.5 months imprisonment, Mem. [573] at 16.

         II. DISCUSSION

         Rule 4(b) of the Section 2255 Rules provides that

[if] it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.

         Section 2255 Rule 4(b).

         A. Perrette's Motion is untimely.

         Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), “a one year statute of limitations governs habeas motions filed by federal inmates.” United States v. Wheaten, 826 F.3d 843, 846 ...


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