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Bailey v. United States

United States District Court, E.D. Tennessee

April 26, 2017

JESSE RONDALE BAILEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 126]. In it, he challenges the propriety of his career offender designation based on Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual provision of the armed career criminal act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.]. Recently, the United States filed a motion to deny and dismiss the petition based on an intervening Supreme Court decision [Doc. 130]. In response, Petitioner filed a motion re-characterizing his claim as one based on Descamps v. United States, 133 S.Ct. 2276 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016) [Doc. 132]. For the reasons below, the United States' motion to deny and dismiss [Doc. 130] will be GRANTED and the supplemented § 2255 motion [Docs. 126, 132] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2008, a jury convicted Petitioner on one count of conspiring to distribute and possess with intent to distribute cocaine hydrochloride and cocaine base, in violation of 21 U.S.C. § 846, one count of distributing cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), and three counts of distributing a mixture of substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) [Doc. 48-50, 90]. 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 (PSR)]. In accordance with that designation, this Court sentenced Petitioner to an aggregate term of 360 months' imprisonment [Doc. 90]. Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence [Doc. 101]. The Supreme Court denied Petitioner's request for a writ of certiorari on June 3, 2010 [Doc. 104].

         On December 20, 2010, Petitioner filed a motion to vacate, set aside, or correct his sentence under § 2255 [Doc. 105]. This Court denied that petition on the merits in a Memorandum Opinion and Judgment Order entered on March 21, 2014 [Docs. 120, 121]. The Supreme Court decided Johnson on June 26, 2015. Petitioner obtained authorization to submit a successive § 2255 petition challenging his career offender designation based on that newly-issued decision [Doc. 125].

         On March 6, 2017, the Supreme Court decided Beckles v. United States, holding that the United States Sentencing Guidelines are “not amenable to vagueness challenges.” 137 S.Ct. 886, 894 (2017). Two weeks later, this Court entered an Order (1) explaining that Beckles necessarily meant that “Johnson . . . does not undermine sentences based on Guideline enhancements;” (2) instructing the parties to “file any motion that they want[ed] the Court to consider in conjunction with, or prior to, ruling on [the instant] petition[] on or before April 1, 2017;” and (3) requiring that responsive pleadings be filed on or before April 15, 2017 [Doc. 128].

         On March 28, 2017, the United States filed a motion to dismiss Petitioner's Johnson-based challenge to his career offender designation in light of Beckles [Doc. 130]. In response, Petitioner argues that Beckles does not foreclose relief because his is a challenge based on Descamps and Mathis, not Johnson. Thus, according to Petitioner, the instant § 2255 motion contains two distinct theories for collateral relief. In the first, Petitioner argues that Johnson invalidated Section 4B1.2's residual clause, facilitation of second-degree murder only qualified as a crime of violence under that invalidated provision, and, without it, he lacks sufficient predicates for career offender enhancement [Doc. 126].[1] In the second, Petitioner argues that he lacks sufficient predicates for career offender enhancement because Descamps and Mathis prevent categorization of facilitation of second-degree murder as a crime of violence under the use-of-physical-force clause [Doc. 132].[2]

         II. TIMELINESS OF SUPPLEMENTED PETITION

         Section 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). This same provision governs the timeliness of later-filed amendments. Cameron v. United States, No. 1:05-cv-264, 2012 WL 1150490, at *3-6 (E.D. Tenn. April 5, 2012) (citing Olsen v. United States, 27 F. App'x 566 (6th Cir. Dec. 14, 2001)). Petitioner has failed to demonstrate that subsections (f)(2) or (f)(4) apply to his case. i.e., 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 the exercise of due diligence. As such, timeliness of the supplemented petition depends on whether submission of the grounds for relief therein complied with subsections (f)(1) and (f)(3).

         A. Timeliness of Supplemented Petition Under Subsections (f)(1) and (f)(3)

         For 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)). Where a defendant pursues direct review through to a petition for certiorari in the United States Supreme Court, direct review concludes when the Supreme Court either denies the petition for certiorari or decides the case. Clay v. United States, 537 U.S. 522, 532 (2003). Petitioner's conviction became final for purposes of § 2255(f)(1) on June 3, 2010. The window for requesting relief under that subsection expired on June 3, 2011, more than five-and-a-half years before Petitioner filed the instant petition.

         To the extent Petitioner attempts to rely on subsection (f)(3)'s independent one-year filing period for newly-recognized rights made retroactively applicable on collateral review as justification for submitting the petition and supplement after June 3, 2011, only his claim for collateral relief based on Johnson even arguably satisfies the conditions required to trigger that provision. See 28 U.S.C. § 2255(f)(3) (requiring reliance on a newly recognized and retroactively applicable right); see also Welch v. United States, 136 S.Ct. 1257, 1265 (2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.”); In re Windy Watkins, 810 F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review and thus triggers § 2255(h)(2)'s requirement for certification of a second or successive petition).

         By contrast, Petitioner's Descamps and Mathis-based challenge to this Court's use of his prior conviction for facilitation of second-degree murder does not assert a newly recognized right and thus cannot rely on the one-year filing window under subsection (f)(3). Mathis involved application of the categorical approach first adopted by the Supreme Court in Taylor v. United States, 495 U.S. 575, 599 (1990), and refined in Descamps, 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.”); see also Descamps, 133 S.Ct. at 2283 (“Our case law explaining the categorical approach and its ‘modified' counterpart all but resolved this case.”); id at 2285 (“Applied in that way-which is the only way we have ever allowed-the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.”). Thus, neither Mathis nor Descamps articulate a “rights-creating rule, ” i.e., a newly recognized right within the scope of § 2255(f)(3). See, e.g., United States v. Montes, 570 F. App'x 830, 831 (10th Cir. 2014) (finding that “the Descamps decision did not recognize a new right” and concluding that the petitioner's § 2255 motion-which was filed within one year of Descamps, but over one year after the petitioner's conviction became final- was untimely”); 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)).

         B. Equitable Tolling of ...


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