United States District Court, S.D. Mississippi, Southern Division
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
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT is the Motion  along with a supporting
Memorandum  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.
FACTS AND PROCEDURAL HISTORY
April 17, 2012, a Grand Jury returned a 30-count Indictment
 against Perrette and 14 co-Defendants. On August 8, 2012,
Perrette pleaded guilty to Counts 1, 16, and 30 of the
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.  at 1-6. Perrette did
preparation for sentencing, the United States Probation
Office prepared a Presentence Investigation Report
(“PSR”). See PSR  (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
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.  at 12.
April 20, 2017, Perrette placed the present Motion to Vacate
pursuant to 28 U.S.C. § 2255 in the prison mailing
system, Mot.  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.  at 12-16. Perrette maintains that his
DUI conviction was “invalidated, ” Mot.  at
4, and asks the Court to resentence him to a total of 121.5
months imprisonment, Mem.  at 16.
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.
2255 Rule 4(b).
Perrette's Motion is untimely.
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 ...