United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
matter comes before the court upon petitioner Ryan Keith
Miller's Motion to Vacate under 28 U.S.C. § 2255
(Doc. 46). On June 13, 2011, an amended judgment was filed in
this case with petitioner pleading guilty to four counts
involving conspiracy to commit wire fraud, wire fraud, aiding
and abetting money laundering, and aggravated identify theft.
(Doc. 43.) He was sentenced to 145 months imprisonment and
three years of supervised release. On February 12, 2018,
petitioner filed his motion to vacate. Petitioner seeks
resentencing because he argues that the United States Supreme
Court in Nelson v. Colorado, 137 S.Ct. 1249 (2017),
held unconstitutional the consideration of uncharged conduct
as relevant conduct at sentencing.
court ordered the government to file a response to
petitioner's motion by March 13, 2018 (Doc. 47). No.
response was filed. The court entered an Order to Show Cause
(Doc. 49) to the government requiring a response or good
cause to be shown to the undersigned by March 30, 2018. The
government responded, showing good cause, and requesting
additional time to respond to petitioner's motion.
However, the court no longer finds a response necessary to
resolve this matter.
a § 2255 motion must be filed within one year of
“the date on which the judgment of conviction becomes
final.” § 2255(f)(1). But a new one-year period
begins on “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.” § 2255(f)(3). Here, petitioner timely
sought leave to file a second or successive motion under
§ 2255(h)(2), which provides that such leave may be
granted when there is “a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.”
new constitutional rules of criminal procedure do not
retroactively apply to cases on collateral review, but
substantives rules “are not subject to this general
retroactivity bar.” Mulay, at *4 (citing
Welch v. United States, 136 S.Ct. 1257 (2016),
Teague v. Lane, 489 U.S. 288 (1989)). Substantive
rules “alter the range of conduct or the class of
persons that the law punishes.” Id. (quoting
Welch, at 1264-65 (quoting Schriro v.
Summerlin, 542 U.S. 348, 353 (2004))). “A rule is
‘new' if it was not dictated by precedent
existing at the time the defendant's conviction became
final.” Id. (quoting Teague, at 301)
(emphasis in original).
§ 2255 is untimely under § 2255(f)(1) because more
than a year has passed since his judgment became final.
Petitioner used a form § 2255 petition and does not
explain why his motion is timely. However, his request for
relief mentions the Supreme Court's decision in
Nelson, which was decided in 2017. Therefore, the
court considers whether petitioner's motion could be
timely under § 2255(f)(3).
seeks resentencing because he argues that 1) in light of the
Nelson decision, it is unconstitutional to use
uncharged relevant conduct at sentencing and 2) it is
unconstitutional to use uncharged relevant conduct based on a
preponderance of the evidence standard of proof. Petitioner
says that he:
was held criminally liable for the uncharged loss amount of
more than $2.5 million but less than $7 million for purposes
of enhancing his guidelines calculation eighteen-levels that
was not admitted to during a plea colloquy, incorporated into
the language of the indictment, or stipulated to by the
parties in the factual basis.
(Doc. 46-2, at 4.) It further claims that “the
government utilized the preponderance of the evidence
standard of proof to find the unchanged loss amount
foreseeable to Petitioner without providing evidence at
sentencing. (Id. at 5.)
Supreme Court's decision in Nelson found that it
was a due process violation for a State to require defendants
whose convictions had been reversed or vacated to prove their
innocence by clear and convincing evidence before they were
refunded costs, fees, and restitution pursuant to their
invalid convictions. 137 S.Ct. 1249. The Supreme Court did
not find that it was unconstitutional to consider relevant
conduct, including conduct that was not charged.
Nelson also does not discuss the appropriate
evidentiary standard for proving relevant conduct is
attributable to a defendant at sentencing. Because
Nelson has no application to this case,
petitioner's motion is also untimely under §
2255(f)(3). Petitioner's motion is therefore time barred.
of the rules governing § 2255 provides that “[t]he
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rule 11, 28 U.S.C. § 2255. Petitioner
must make a “substantial showing of the denial of a
constitutional right” in order for the district court
to issue a certificate of appealability. § 2253(c)(2). A
petitioner may meet this burden by “showing that
reasonable jurists could debate whether (or, for that matter
agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)).
A petitioner must show “something more than the absence
of frivolity or the existence of mere good faith on his or
her part.” Miller-El v. Cockrell, 537 U.S.
322, 338 (2003) (quoting Barefoot, at 893). The
court must “indicate which specific issue or issues
satisfy the showing required . . .” § 2253(c)(3).
Petitioner has not made a substantial showing of the denial
of a constitutional right. The court must therefore deny a
certificate of appealability on the court's order denying
petitioner's § 2255 motion.
IS THEREFORE ORDERED that petitioner's Motion to
Vacate under 28 U.S.C. § 2255 (Doc. 46) is denied as