United States District Court, E.D. Tennessee, Greeneville
MATAU J. GOINS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RONNIE GREER UNITED STATES DISTRICT JUDGE
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 51]. The petition relies on Mathis v. United
States, 136 S.Ct. 2246 (2016), in which the Supreme
Court expounded on the categorical approach first announced
in Taylor v. United States, 495 U.S. 575, 599
(1990), and refined in Descamps v. United States,
133 S.Ct. 2276 (2013) [Id.]. Also before the Court
is Petitioner's request that counsel be appointed to
assist in litigation of his collateral challenge [Doc. 52].
For the reasons below, Petitioner's request for counsel
will be DENIED and his § 2255 motion will be DENIED as
untimely and DISMISSED WITH PREJUDICE.
2011, Petitioner was convicted of possessing cocaine with
intent to distribute, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C) [Doc. 39]. The United States Probation
Office deemed Petitioner to be a career offender under
Section 4B1.1 of the United States Sentencing Guidelines
[See generally Presentence Investigation Report];
this Court agreed and sentenced Petitioner to 188 months'
imprisonment followed by six years' supervised release on
February 24, 2011 [Doc. 39]. Slightly less than six years
later-on November 21, 2016-Petitioner filed the instant
§ 2255 motion seeking vacatur or correction of his
sentence in light of the Mathis decision [Doc. 51
(suggesting that an undisclosed number of prior drug
convictions no longer qualify as controlled substance
offenses and, without those convictions, he no longer has
sufficient predicate convictions for career offender
REQUEST FOR COUNSEL
addition to the petition, this Court is in possession of
Petitioner's request for the appointment of counsel to
assist in the litigation of his collateral challenge [Doc.
51]. The appointment of counsel in a civil case is a matter
within the discretion of the Court. Childs v.
Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987). After
careful consideration of the type and nature of claim
identified, complexity of the collateral challenge proposed
and Petitioner's capability of raising the challenge
without assistance, this Court is of the opinion that counsel
is not necessary at this time. Mira v. Marshall, 806
F.2d 636 (6th Cir. 1986). Accordingly, Petitioner's
motion for appointment of counsel will be DENIED.
TIMELINESS OF PETITION
2255(f) places a one-year statute of limitations on all
petitions for collateral relief under § 2255 running
from either: (1) the date on which the judgment of conviction
becomes final; (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
governmental action; (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 applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence. 28 U.S.C. § 2255(f).
Petitioner has failed to demonstrate that subsections (f)(2)
or (f)(4) apply. Specifically, he has not established that
any illegal action by the government prevented him from
making the timely petition or the existence of facts
affecting his case that could not have previously been
discovered through due diligence. Timeliness depends on
whether submission complied with subsections (f)(1) and
Timeliness under Subsections (f)(1) and (f)(3)
purposes of the subsection (f)(1)-where the statutory period
expires one year from the date on which the judgment of
conviction becomes final-“a conviction becomes final at
the conclusion of direct review.” Brown v. United
States, 20 F.App'x 373, 374 (6th Cir. 2001) (quoting
Johnson v. United States, 246 F.3d 655, 657 (6th
Cir. 2001)). “[W]hen a federal criminal defendant does
not appeal to the court of appeals, the [direct review
concludes] upon expiration of the period in which the
defendant could have appealed to [such court], even when no
notice of appeal was filed.” Johnson v. United
States, 457 F.App'x 462, 465 (6th Cir. 2012)
(quoting Sanchez-Castellano v. United States, 358
F.3d 424, 427 (6th Cir. 2004)). Petitioner's judgment of
conviction became final on March 10, 2011, fourteen days
after the Court entered judgment on February 24, 2011.
See Sanchez Castellano v. United States, 358 F.3d
424, 428 (6th Cir. 2004) (explaining unappealed judgments
becomes final when the period for filing a direct appeal has
elapsed); Fed. R. App. P. 4(b)(1)(A) (2012) (noting criminal
defendant was required to file a notice of appeal within
fourteen days of entry of the judgment appealed). The window
under subsection (f)(1) began to run on that date, expired on
March 10, 2012.
to file the instant petition until November 21, 2016, means
that the instant motion is untimely under subsection (f)(1).
To the extent that Petitioner relies on subsection (f)(3),
this Court notes that triggering the renewed window contained
in that provision requires that the requested relief be based
on: (1) a right newly recognized by the Supreme Court and (2)
made retroactively applicable by that same institution. 28
U.S.C. § 2255(f)(3). Because Petitioner has failed to
demonstrate that the Mathis decision satisfies the
first prong, the Court need not determine whether it
satisfies the second. The Mathis decision involved
application of the categorical approach first adopted by the
Supreme Court in Taylor and refined in the
Descamps decision to a new set of facts. See
Mathis, 136 S.Ct. at 2281 (citing “longstanding
principles” and noting that prior “cases
involving the modified categorical approach [had] already
made exactly [the same] point”); Id. at 2257
(“Our precedents make this a straightforward case. For
more than [twenty-five] years, we have repeatedly made clear
that application of the [Armed Career Criminal Act (ACCA)]
involves, and involves only, comparing elements.”). As
such, the holding of that case cannot be characterized as
articulating a “rights-creating rule, ” i.e., a
newly recognized right within the scope of § 2255(f)(3).
See, e.g., Henderson v. United States, No.
16-00572, 2016 WL 4967898, at *2 (W.D. Mo. Sept. 16, 2016)
(“[The] Mathis [decision] does not present a
new rule or procedure.”); Leone v. United
States, No. 95-00960, 2016 WL 4479390, at *8-9 (S.D. Fla.
Aug. 24, 2016) (noting that the Mathis decision did
not articulate a “new rule” within the meaning of
subsection (f)(3)). As a result, the petition will be
untimely absent tolling of the limitations period in
Equitable Tolling of Subsection (f)(1)
2255(f)'s statute of limitations is not jurisdictional
and may be tolled under limited, extraordinary circumstances.
Dunlap v. United States, 250 F.3d 101, 1007 (6lth
Cir. 2001). Used sparingly, a petitioner bears the burden of
establishing that equitable tolling applies to his case,
see Jurado v. Burt, 337 F.3d 638, 642 (6th Cir.
2003); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir.
2004), and must show “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing,
” Holland v. Florida, 130 S.Ct. 2549, 2562
(2010); Hail v. Warden, 662 F.3d 745, 750 (6th Cir.
2011); see also Jurado, 337 F.3d at 643
(“Absent compelling equitable considerations, a court
should not extend limitations by even a single day.”).
review of the petition, the Court concludes that Petitioner
has failed to put forth a single extraordinary circumstance
justifying the failure to submit his collateral challenge
within the window permitted by subsection (f)(1). Compare
Stovall v. United States, No. 1:12-cv-377, 2013 WL
392467, at *3 (E.D.T.N. Jan. 31, 2013) (rejecting request for
equitable tolling of subsection (f)(1) in absence of evidence
illustrating a diligent pursuit of the rights asserted);
with Jones v. United States, 689 F.3d 621, 627 (6th
Cir. 2012) (granting request for equitable tolling where the