United States District Court, E.D. Tennessee, Knoxville
Jordan United States District Judge
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,
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].
RELEVANT BACKGROUND FACTS AND PROCEDURAL HISTORY
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].
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].
§ 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]
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].
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].
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].
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].
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).
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). Petitioner filed his § 2255 motion
on May 13, 2016, more than eleven years too late 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 ...