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Bethea v. United States

United States District Court, M.D. Georgia, Macon Division

May 15, 2018

JAMES ALBERT BETHEA Petitioner
v.
UNITED STATES OF AMERICA, Respondent

         Proceedings Under 28 U.S.C. § 2255 Before the U.S. Magistrate Judge

          REPORT AND RECOMMENDATION

          Charles H. Weigle, United States Magistrate Judge

         Petitioner James Albert Bethea filed a pro se Motion to Vacate under 28 U.S.C. § 2255 seeking relief from his sentence under 18 U.S.C § 922(g) in combination with § 924(e) in light of Johnson v. United States, 135 S.Ct. 2551 (2015). Currently before the Court is a Motion to Dismiss filed by the United States of America. For the following reasons, it is RECOMMENDED that the Government's Motion to Dismiss (Doc. 71) be GRANTED and Petitioner's Motion to Vacate be DENIED.

         DISCUSSION

         On April 23, 2018, Petitioner entered a plea of guilty to Count Two of the superseding indictment which charged Petitioner with “Possession of a Firearm by a Convicted Felon in violation of Title 18, United State Code, Section 922(g)(1) and 924(e).” Doc. 47, p. 3.

         The indictment charged as follows:

That on or about July 30, 2006, in the Macon Division of the Middle District of Georgia and elsewhere within the jurisdiction of this Court, James Albert Bethea, having been convicted of crimes punishable by imprisonment for a term exceeding one (1) year, did knowingly receive and possess a firearm which had previously been shipped and transported in interstate commerce, to wit: one Hi- Point Model C9, 9mm pistol, serial number P1282121; all in violation of Title 18, United States Code, Sections 922(g)(1) and 924(e)(1).
Said crimes punishable by imprisonment for a term exceeding one (1) year being more particularly described as:
the offense of Possession With Intent to Distribute Cocaine on September 12, 1994 in Criminal Case No. 94-SPCR-34 in the Superior Court of Washington County, Georgia;
the offense of Sale of Cocaine on November 16, 1995 in Criminal Case No. 95-CR-50 in the Superior Court of Washington County, Georgia;
the offense of Aggravated Assault on May 27, 1998 in Criminal Case No. 98-CR-30B in the Superior Court of Washington County, Georgia; and,
the offense of Sale of Marijuana on February 17, 2000 in Criminal Case No. 99-CR-101 in the Superior Court of Washington County, Georgia.

Doc. 25, p. 3.

         Judgment was entered on August 19, 2008, and Petitioner received a total term of imprisonment of 180 months followed by 5 years supervised release. Doc. 61. Petitioner did not appeal his conviction, and over seven years after judgment was ...


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