United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING
PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
Stewart, United States District Judge
matter is before the Court on Petitioner Terry Arnold
Messer's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody. For the reasons discussed below, the Court will deny
the Motion and dismiss this case.
was charged on February 28, 2013, with one count of
distribution of methamphetamine. A Superseding Indictment was
filed on April 24, 2013. Petitioner pleaded guilty on August
15, 2013, pursuant to Federal Rule of Criminal Procedure
to sentencing, a Presentence Report was prepared. The
Presentence Report determined that Petitioner qualified as a
career offender based on three prior convictions: (1) a 1996
conviction for distribution of a controlled substance; (2) a
2000 conviction for possession of a controlled substance
within a correctional facility; and (3) a 2001 conviction for
operation of a clandestine laboratory.
November 7, 2013, the Court accepted the plea agreement and,
in accordance with that agreement, imposed a sentence of 240
months. Judgment was entered on November 13, 2013.
did not file a direct appeal. However, Petitioner filed a
Petition for Writ of Error Coram Nobis on June 18, 2014.
Petitioner then filed a § 2255 motion on June 19, 2014,
and requested the Court construe his Petition for Writ of
Error Coram Nobis as a § 2255 motion.
later sought dismissal of his § 2255 Motion. The Court
granted that request and dismissed Petitioner's original
§ 2255 Motion without prejudice on October 21, 2014.
has now filed the instant Motion, again requesting relief
under § 2255. Petitioner's Motion is dated March 20,
2018, and was received by the Court on April 3, 2018.
Petitioner asserts that his counsel was ineffective during
the pretrial, plea, sentencing, and direct appeal process. In
particular, Petitioner takes issue with counsel's failure
to object to Petitioner's classification as a career
offender and argues that he is actually innocent of the 2001
conviction for operation of a clandestine laboratory.
general, a prisoner may not file a § 2255 motion more
than one year after his conviction becomes
final. 28 U.S.C. § 2255(f) provides, A
1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) 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