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United States v. Gadsden

United States District Court, W.D. Pennsylvania

December 11, 2017

UNITED STATES OF AMERICA
v.
OMAR GADSDEN,

          MEMORANDUM OPINION

          Joy Flowers Conti, Chief United States District Judge

         On June 27, 2017, Omar Gadsden (“Gadsden”) filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (ECF No. 396), and a memorandum of law in support of his motion (ECF No. 403).[1] Gadsden contends that in light of the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016), he should not have been sentenced as a career offender. The government filed a response in opposition to the motion (ECF No. 401) and a motion to dismiss Gadsden's motion (ECF No. 402). The government contends that this court lacks subject-matter jurisdiction because Gadsden has not obtained authorization to file a second or successive § 2255 petition, as required by 28 U.S.C. §§ 2244(b) and 2255(f)(3). Gadsden filed a reply to the government and the motions are ripe for decision. They will be addressed together.

         Factual and Procedural Background

         Gadsden pleaded guilty to Count III of the third superseding indictment in Criminal Case No. 09-305 (conspiracy to retaliate against a witness) on November 6, 2012. On March 7, 2013, he consented to transfer of Criminal Case No. 13-65 from the United States District Court for the District of New Jersey to this court for change of plea and sentencing. On June 17, 2013, Gadsden pleaded guilty to the one-count indictment in Criminal Case No. 13-65 (conspiracy to distribute heroin). The court sentenced Gadsden to 210 months of imprisonment at Case No. 09-305 and 151 months of imprisonment at Case No. 13-65, to run concurrently. Gadsden did not file a direct appeal. He filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which the court denied. (ECF Nos. 372, 382).

         This is Gadsden's third § 2255 motion. He filed his first §2255 motion pro se on April 28, 2015 (ECF No. 370). The court denied the motion as untimely and did not issue a certificate of appealability. (ECF Nos. 385, 386). Counsel for Gadsden filed a second § 2255 motion on June 15, 2016 (ECF No. 388), which was stayed while Gadsden sought leave from the Third Circuit Court of Appeals to file a second or successive petition pursuant to 28 U.S.C. §2244(b). Counsel subsequently filed a motion for voluntary dismissal without prejudice, which the court granted on March 28, 2017. (ECF Nos. 394, 395). Gadsden filed the pending § 2255 motion pro se on June 27, 2017, and defense counsel was permitted to withdraw as his attorney.

         Legal Analysis

         Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. Courts may afford relief under § 2255 on a number of grounds including “that the sentence was imposed in violation of the Constitution or the laws of the United States.” 28 U.S.C. § 2255(a). The statute provides that, as a remedy for an unlawfully-imposed sentence, “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). The court accepts the truth of the defendant's allegations when reviewing a § 2255 motion unless those allegations are “clearly frivolous based on the existing record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). A court is required to hold an evidentiary hearing when the motion “allege[s] any facts warranting § 2255 relief that are not clearly resolved by the record.” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (quoting Booth, 432 F.3d at 546). An evidentiary hearing is not necessary in this case.

         Gadsden recognizes that his pending § 2255 motion, filed almost four years after his sentence, would ordinarily be untimely. He contends, however, that his motion is timely because it was filed within one year of Mathis. Gadsden's reliance on Mathis is misplaced.

         Congress enacted a one-year limitations period in 28 U.S.C. § 2255(f). The text of the statute provides:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(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 ...

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