United States District Court, W.D. Pennsylvania
OPINION AND ORDER
Donetta W. Ambrose Senior Judge, U.S. District Court.
action, Defendant pleaded guilty to three Counts, of
violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). On
June 30, 2008, he was sentenced to a term of imprisonment of
168 months at each Count, to run concurrently, followed by a
term of supervised release. His sentence rested, in part, on
a career offender enhancement pursuant to U.S.S.G. §
4B1.1. Defendant filed a pro se Motion pursuant to
28 U.S.C. § 2255, arguing that his enhanced sentence is
invalid. This Court appointed counsel, who sought and
received leave to amend Defendant's pro se
Motion. No amendment was filed, and Defendant's Motion is
now ripe for review. Also pending are Defendant's Motion
for Bail pending his Section 2255 Petition, and a Motion in
Support of 2255 Petition, which supplements the arguments set
forth in his supporting brief. For the following reasons, the
motions will be denied, and no certificate of appealability
prisoner in federal custody may move to vacate his or her
sentence under 28 U.S.C. § 2255(a) if such
"sentence was imposed in violation of the Constitution
or laws of the United States." 28 U.S.C. § 2255(a).
"[R]elief under § 2255 is available only when
'the claimed error of law was a fundamental defect which
inherently results in a complete miscarriage of justice, and
... present[s] exceptional circumstances where the need for
the remedy afforded by the writ ... is apparent.'"
United States v. Travillion, 759 F.3d 281, 288 (3d
Cir. 2014) (quoting Davis v. United States, 417 U.S.
333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). A district
court need not hold an evidentiary hearing on a Section 2255
motion if the motion, files, and records show conclusively
that the defendant is not entitled to relief. United
States v. Ritter, 93 F. App'x 402, 404 (3d Cir.
2004). In this case, an evidentiary hearing is unnecessary,
and the Motion will be disposed of on the record. Further,
because the Motion at bar was filed pro se, I have
considered Defendant's submissions according to the
well-established liberal standard afforded such submissions,
despite later-appointed counsel.
Motion is rather straightforward. He asserts that in light of
Mathis v. United States, 136 S.Ct. 2243 (2016), the
statutes of prior conviction are divisible and subject to a
modified categorical approach, and that his prior drug
offenses no longer qualify as § 4B1.1 predicates under
Government challenges Defendant's Motion on timeliness
grounds. 28 U.S.C. § 2255(f) provides a one-year period
to file a motion to vacate that runs from the latest of,
inter alia: the date on which the conviction became
final, or 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 on collateral review. Defendant's 2008
conviction became final long before he filed his Motion to
Vacate on October 20, 2016. Moreover, Mathis does
not represent a newly recognized right made retroactive on
collateral review, and does not restart the limitations
period. See, e.g., United States v.
Taylor, No. 16-6223, 2016 U.S. App. LEXIS 21701 (10th
Cir. Dec. 6, 2016); United States v. Maldonado, No.
13-583, 2017 U.S. Dist. LEXIS 104107 (S.D. Tex. Jul. 6,
2017); Bivens v. United States, 2017 U.S. Dist.
LEXIS 81284 (S.D. Fla. May 25, 2017); United States v.
Villella, 2017 U.S. Dist. LEXIS 64052 (W.D. Pa. Apr. 27,
2017). Defendant has not offered any grounds or exception,
other than the appearance of Mathis, that would
justify his tardy filing. Nor is Defendant assisted by
invoking Johnson v. United States, 135 S.Ct. 2551
(2015). Even if Johnson were to apply to
Defendant's career offender sentence, Defendant filed his
Motion more than one year after Johnson was decided.
Therefore, Defendant's Motion was filed outside of the
limitations period established by Section
CERTIFICATE OF APPEALABILITY
28 U.S.C.§ 2253(c)(2), a "certificate of
appealability may issue only if the applicant has made a
substantial showing of the denial of a constitutional
right." For the reasons stated above, Defendant has not
made such a showing. Therefore, a certificate of
appealability will not issue.
Defendant has not demonstrated a fundamental defect of the
type contemplated by Section 2255 relief, or a substantial
showing of the denial of a constitutional right. His Motions
will be denied, and no ...