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Rodriguez-Luca v. United States

United States District Court, E.D. Tennessee, Knoxville

August 7, 2019



          Leon Jordan United States District Judge

         Before the Court are Petitioner Jorge Rodriguez-Luca's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, and the United States' motion to deny the petition and dismiss the action with prejudice [Docs. 1, 9].[1] Also pending before the Court are Petitioner's supplement objecting to the summaries in his Presentence Investigation Report (“PSR”), his supplement regarding the mandatory United States Sentencing Guidelines, the United States' response to the supplement, Petitioner's reply to the United States' response, and the United States' supplemental response to Petitioner's supplement [Docs. 7, 12, 14, 18-19]. For the reasons that follow, the Court will GRANT the United States' motion to deny and dismiss this action [Doc. 9].


         A jury convicted Petitioner of conspiring to distribute at least fifty grams of methamphetamine, a violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846; attempting to possess with intent to distribute at least fifty grams of methamphetamine, a violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B); and illegally reentering the United States after removal following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1) and (b)(2) [Doc. 94, Case No. 3:01-CR-151]. In Petitioner's later-prepared PSR, the probation officer determined that Petitioner had at least two prior felony convictions for crimes of violence or controlled substance offenses and that those prior convictions produced an enhanced statutory range of penalties of ten years up to life imprisonment (for the methamphetamine offenses) and up to twenty years' imprisonment (for the illegal reentry offense) [PSR at ¶¶ 47-48, 69; Doc. 54, 21 U.S.C. § 851 Notice of Enhancement, listing 1997 Minnesota controlled substance offense, Case No. 3:01-CR-151].

         Petitioner was classified as a career offender based on his prior convictions, see USSG § 4B1.1, and was sentenced to a total sentence of 360 months' imprisonment (consisting of two, concurrent 360-month terms for the drug convictions and a 240-month term for the illegal reentry conviction, concurrent to the two 360-month terms) [PSR at ¶ 39, Doc. 128, Judgment, Case No. 3:02-CR-151]. On direct review, Petitioner's conviction and sentence were affirmed [Doc. 144, United States v. Rodriguez-Luca, No. 03-5444 (6th Cir. Nov. 1, 2004) (order), Case No. 3:01-CR-151]. Petitioner did not pursue certiorari review in the Supreme Court. On May 13, 2016, acting pro se, he filed his motion to vacate, followed in June by his counseled supplement [Docs. 1, 7].[2]

         Petitioner's § 2255 motion relies on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which struck down the residual clause of the Armed Career Criminal Act (“ACCA”) as unconstitutionally vague [Docs. 1, 2, Supporting Memorandum]. Johnson, 135 S.Ct. at 2563 (holding “that imposing an increased sentence under the residual clause . . . violates the Constitution's guarantee of due process”). Petitioner argued that Johnson's reasoning applied to invalidate his career-offender classification under the residual clause of the Guidelines, thus entitling him to the removal of the enhancement and to resentencing “without the career offender guideline application” [Doc. 1 at 4, 8, Doc. 2 at 9-10]. The Court stayed the case pending the Supreme Court's issuance of a decision as to Johnson's impact on the Guidelines [Doc. 168, Case No. 3:01-CR-151]

         On March 6, 2017, the Supreme Court handed down its decision in Beckles v. United States, 137 S.Ct. 886 (2017), holding that the advisory Sentencing Guidelines are not subject to vagueness challenges under the Due Process Clause. Beckles, 137 S.Ct. at 895. Ten days later, the Court entered an order advising the parties of its intent to deny summarily Petitioner's § 2255 motion with prejudice based on Beckles and inviting them to file timely motions if they disagreed with the Court's contemplated action [Doc. 8].

         Petitioner accepted the invitation and filed a supplement [Doc. 12]. Petitioner argued in the supplement that he was sentenced under the mandatory Guidelines, as distinguished from the advisory Guidelines that Beckles concluded were not subject to vagueness attacks. Petitioner thus maintained that Beckles had no impact on his request for § 2255 relief because Beckles did not exempt the mandatory Guidelines from such an attack [Id. at 2].

         The United States responded to the supplement, asserting that Johnson did not recognize the rule Petitioner was advancing, i.e., that the mandatory Guidelines career offender provision was unconstitutionally vague, and that Petitioner was asking the Court to apply a new rule or to extend the rule in Johnson to mandatory Guidelines [Doc. 15]. The United States reasoned that because Petitioner was not sentenced under the ACCA and because the Supreme Court did not make Johnson retroactive to Guidelines cases on collateral review, Petitioner had failed to show that Johnson authorized the relief he sought [Id. at 4, 7]. The United States also maintained that, since Johnson had not been made retroactive to Guidelines cases, the decision did not reset § 2255(f)(3)'s one-year limitation statute in Petitioner's case, meaning that his § 2255 motion, filed eleven years too late under § 2255(f)(1), was subject to dismissal as untimely [Id. at 4 n.3].

         In reply, Petitioner argued, in the main, that Beckles had no effect on his Johnson challenge to the career offender provision in the mandatory Guidelines; that he was relying on the rule in Johnson, not on a new rule; and that his § 2255 motion was timely because he filed it within one year after Johnson was handed down [Doc. 18]. The United States supplemented its response in opposition to Petitioner's supplement, citing to Raybon v. United States, 867 F.3d 625 (6th Cir. 2017), as further support for its arguments that Petitioner is ineligible for relief under Johnson and that his § 2255 motion should be dismissed as untimely [Doc. 19].


         Petitions under 28 U.S.C. § 2255 asking for collateral relief are subject to a one-year statute of limitation, running from one of four dates. 28 U.S.C. § 2255(f)(1)-(4). Usually, the date on which the judgment of conviction becomes final is the relevant date. 28 U.S.C. § 2255(f)(1). However, a new statute of limitation is triggered for claims based on a right which “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.” 28 U.S.C. § 2255(f)(3).

         Under subsection one, i.e., § 2255(f)(1), the one-year limitations period begins to run on the date a conviction becomes final. The Sixth Circuit decided Petitioner's direct appeal on November 1, 2004 [Doc. 144, Case No. 3:01-CR-151]. As noted, Petitioner did not seek certiorari review in the Supreme Court. Hence, ninety days later, upon the lapse of the period for petitioning the Supreme Court for certiorari review, see Sup. Ct. R. 13.1, Petitioner's conviction became final. Clay v. United States, 537 U.S. 522, 525 (2003) (holding that “a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction”). The ninetieth day fell on Monday, January 31, 2005 (November 2, 2004, plus ninety days).[3] Petitioner filed his § 2255 motion on May 13, 2016, more than eleven years too late under § 2255(f)(1).

         Under subsection three, a petition is timely so long as it is filed within one year after the Supreme Court issues an opinion newly recognizing a right and holding that it applies retroactively to cases on collateral review. 28 U.S.C. § 2255(f)(3). As the Court has observed, Beckles concluded that the advisory Guidelines residual clause in USSG 4B1.2(a), unlike the residual clause in the ACCA that Johnson struck down as unconstitutionally vague, is not subject to a void-for-vagueness challenge. Beckles, 137 S.Ct. at 892. Because Petitioner does not identify any new right recognized by the Supreme Court and made retroactive on ...

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