United States District Court, W.D. Pennsylvania
Flowers Conti, Chief United States District Judge
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). 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.
and Procedural Background
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).
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.
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.
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.
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
(1) the date on which the judgment of conviction becomes
(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
(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