United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge.
matter is before the Court on defendant's Motion Under 28
USC § 2255 To Vacate, Set Aside, Or Correct Sentence By
A Person In Federal Custody (Doc. #94) filed April 14, 2017.
On April 25, 2017, the Court directed the parties to file
briefs on the limited issue of potential procedural bars to
defendant's motion. Memorandum And Order (Doc.
#95); see United States v. Allen, 16 F.3d 377,
378-79 (10th Cir. 1994) (court may raise and enforce
procedural bar sua sponte if doing so furthers
interests of judicial efficiency, conservation of scarce
judicial resources and orderly and prompt administration of
justice). In particular, the Court directed the parties to
address whether defendant's motion is barred as untimely.
On May 25, 2017, the government filed a brief on the issue.
See Government's Response To Court's Order
(Doc. #99). Defendant has not filed a reply. For reasons
stated below, the Court overrules defendant's motion to
vacate and denies a certificate of appealability.
March 15, 2013, a grand jury charged Richard Fisher with two
counts of transporting firearms in interstate commerce after
a felony conviction in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2) and 924(e). See Indictment
(Doc. #1), Counts 8 and 11. On September 25, 2013, pursuant
to a plea agreement under Rule 11(c)(1)(C), Fed. R. Crim. P.,
defendant pled guilty to both counts. See Plea Agreement
Pursuant To Fed. R. Crim. P. 11(c)(1)(C) (Doc. #47). The
agreement proposed a sentence of 180 months in prison.
See id., ¶ 3. Defendant had a total offense
level of 31 with a criminal history category VI for a
guideline range of 188 to 235 months in prison. See
Presentence Investigation Report (Doc. #63) filed
December 30, 2013, ¶ 127. On January 7, 2014, the Court
accepted the Rule 11(c)(1)(C) agreement and sentenced
defendant to 180 months in prison on Counts 8 and 11, with
the terms to be served concurrently.
April 14, 2017, defendant filed a pro se motion to vacate his
sentence under 28 U.S.C. § 2255. Defendant asserts that
under Mathis v. United States, 136 S.Ct. 2243
(2016), his prior offenses no longer qualify as predicate
offenses under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). Defendant
asserts that absent the enhancement under the ACCA, the Court
should reduce his sentence to the statutory maximum of 120
months found in 18 U.S.C. § 922(g).
standard of review of Section 2255 petitions is quite
stringent. The Court presumes that the proceedings which led
to defendant's conviction were correct. See Klein v.
United States, 880 F.2d 250, 253 (10th Cir. 1989).
government asserts that defendant's claim is barred as
untimely. See Government's Response To Court's
Order (Doc. #99) filed May 25, 2017 at 2-5. Section 2255
provides a one-year period of limitation which ordinarily
runs from the date on which the judgment of conviction
becomes final. If defendant does not directly appeal his
conviction or sentence, the conviction becomes final upon the
expiration of the time to take a direct criminal appeal.
United States v. Prows, 448 F.3d 1223, 1227-28 (10th
Cir. 2006). Here, on January 8, 2014, the Court entered
judgment. See Judgment In A Criminal Case (Doc.
#66). Under Rule 4(b) of the Federal Rules of Appellate
Procedure, defendant's judgment became final 14 days
later on January 22, 2014. Therefore defendant had until
January 22, 2015 to file a motion to vacate under Section
Section 2255(f)(3), the Court can consider a claim which is
filed after the one-year deadline, but within one year of 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.” 28 U.S.C.
§ 2255(f)(3). A case announces a new rule if controlling
precedent at the time defendant's conviction became final
did not dictate the same result. Teague v. Lane, 489
U.S. 288, 301 (1989). In Mathis itself, however, the
Supreme Court noted that it was not announcing a new rule
because prior precedent dictated the result in that case. 136
S.Ct. at 2257. The Supreme Court noted as follows:
For more than 25 years, we have repeatedly made clear that
application of ACCA involves, and involves only, comparing
elements. Courts must ask whether the crime of conviction is
the same as, or narrower than, the relevant generic offense.
They may not ask whether the defendant's conduct - his
particular means of committing the crime - falls within the
generic definition. And that rule does not change when a
statute happens to list possible alternative means of
commission: Whether or not made explicit, they remain what
they ever were - just the facts, which ACCA (so we have held,
over and over) does not care about.
Id.; see United States v. Taylor, 672 F.
App'x 860, 864 (10th Cir. 2016) (Mathis did not
announce new rule); Dawkins v. United States, 829
F.3d 549, 551 (7th Cir. 2016) (same). Because Mathis
did not announce a new rule, defendant is not entitled to
tolling under Section 2255(f)(3).
has not asserted any other basis for tolling of the statutory
deadline. Under certain circumstances a claim of actual
innocence may be a ground for equitable tolling of the
limitations period. See Gibson v. Klinger, 232 F.3d
799, 808 (10th Cir. 2000) (equitable tolling available only
in rare and exceptional circumstances such as when prisoner
“actually innocent”). Defendant has not presented
any factual support for equitable tolling and the Court finds
no basis for applying the doctrine in this case.
the Court overrules as untimely defendant's motion to