United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
the Court is Petitioner's supplemented pro se motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 [Docs. 170, 180]. Recently, the United
States filed a motion to deny and dismiss the petition based
on an intervening Supreme Court decision [Doc. 186].
Petitioner did not respond and the time for doing so has now
passed [Doc. 183]. For the reasons below, the United
States' motion to deny and dismiss [Doc. 186] will be
GRANTED and Petitioner's supplemented § 2255 motion
[Docs. 170, 180] will be DENIED and DISMISSED WITH PREJUDICE.
2011, Petitioner pled guilty to conspiring to distribute and
possess with intent to distribute oxycodone, in violation of
21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(C)
[Presentence Investigation Report (PSR) ¶¶ 2, 8].
Based on two sets of Tennessee convictions-one for aggravated
assault and aggravated burglary and one for possession of
methamphetamine with intent to sell, the United States
Probation Office deemed Petitioner to be a career offender
under Section 4B1.1 of the United States Sentencing
Guidelines with a Guidelines range of 188 to 235 months'
imprisonment [Id. ¶¶ 33, 70]. In
accordance with that designation, this Court sentenced
Petitioner to 135 months' imprisonment on May 9, 2012
[Doc. 117]. Petitioner did not appeal.
three years later-on June 23, 2016, Petitioner filed a pro se
petition challenging this Court's use of his prior
aggravated burglary and aggravated assault convictions as
predicate crimes of violence based on Johnson, which
held that the residual provision of the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally
vague [Doc. 170 (arguing that the Guidelines residual clause
is equally vague)]. During pendency of the appeal-on December
5, 2016, Petitioner supplemented his petition with a related,
but novel ground for relief: the Supreme Court's decision
in Mathis v. United States, 136 S.Ct. 2243 (2016),
removed his prior drug conviction from Section 4B1.2's
definition of “controlled substance offense”
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. 183]. On March 30, 2017, the United
States filed a motion to dismiss Petitioner's
Johnson-based challenge to his career offender
designation in light of Beckles [Doc. 186].
Petitioner did not file a response in opposition.
TIMELINESS OF SUPPLEMENTED 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). 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)
Timeliness of Supplemented Petition Under Subsections (f)(1)
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)). Using the same reasoning, the Sixth Circuit
has made clear that “when a federal criminal defendant
does not appeal to the court of appeals, [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 conviction
became final on May 23, 2012, fourteen days after the Court
entered judgment on May 9, 2012. See Fed. R. App.
Proc. 4(b)(1)(A)(i) (“In a criminal case, a
defendant's notice of appeal must be filed in the
district court within [fourteen] days after . . . the entry
of . . . judgment.”). The window for requesting relief
under that subsection expired on May 23, 2013, more than
three years before submission of the petition and supplement.
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 May 23, 2013, 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).
contrast, Petitioner's Mathis-based challenge to
use of his prior drug offense as a controlled substance
offense Under Section 4B1.1(a)(3) 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 v. United
States, 133 S.Ct. 2276 (2013), 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)). Thus, timeliness of Petitioner's
Mathis-based ground depends on tolling.
Equitable Tolling of Subsection (f)(1)
2255(f)'s statute of limitations is not jurisdictional
and may be tolled under 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, ...