Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Mullins

United States District Court, D. Kansas

March 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN M. MULLINS, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         Petitioner Brian M. Mullins was sentenced to 144 months imprisonment with sixty months of his imprisonment coming from his conviction under 18 U.S.C. § 924(c)(1)(A). Petitioner now brings this Motion under 28 U.S.C. § 2255 to Vacate his Sentence (Doc. 89). In this motion, Petitioner contends that his sentence should be vacated because his conviction does not qualify as a crime of violence under § 924(c)(3)(A)'s elements clause. In addition, Petitioner asserts that the residual clause in § 924(c)(3)(B) is unconstitutionally vague. As will be explained below, the Court denies Petitioner's § 2255 claim because it is untimely and denies the motion without an evidentiary hearing.

         I. Factual and Procedural Background

         The facts surrounding Petitioner's judgment of conviction are as follows. On May 8, 2012, Petitioner pled guilty to three counts: (1) 18 U.S.C. § 1951(a), conspiracy to interfere with commerce by robbery; (2) 18 U.S.C. § 924(c)(1)(A), carrying a firearm, during and in relation to, a crime of violence; and (3) 18 U.S.C. § 922(g)(1), felon in possession of a firearm. The Court sentenced Petitioner to 84 months of imprisonment for the §§ 1951(a) and 922(g)(1) offenses and 60 additional months for the § 924(c) offense, totaling 144 months imprisonment and five years of supervised release. Petitioner did not file a direct appeal.

         On June 13, 2016, Petitioner filed this Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255(a). He moves to set aside his sentence pursuant to the authority in Johnson v. United States.[1] In that decision, the United States Supreme Court found that the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii), the Armed Career Criminal Act (ACCA), was unconstitutionally vague.[2] Petitioner first contends that his § 924(c) conviction must be vacated because his Hobbs Act robbery conviction does not qualify as a crime of violence under § 924(c)(3)(A)'s elements clause. In addition, Petitioner asserts that the residual clause in § 924(c)(3)(B) is unconstitutionally vague.

         After Petitioner filed his motion, the Court issued a stay at the parties' request because it appeared that the Tenth Circuit Court of Appeals or the United States Supreme Court was going to rule on several issues pertinent to the case. The parties submitted supplemental briefing after several cases were decided.

         Now, Petitioner contends that even though the recent United States Supreme Court decision, Stokeling v. United States, [3] dooms § 2255 petitions of defendants convicted of Hobbs Act robbery, it does not doom his. Specifically, he argues that he was only convicted of conspiracy to commit a Hobbs Act robbery. Thus, he was not convicted of using force but only agreeing to use force. In addition, he asserts that the reasoning in Johnson that § 924(e)(2)(B)(ii) is unconstitutionally vague is equally applicable to the similar language in § 924(c)(3)(B).

         The government asserts that Petitioner's motion is procedurally defective because it is untimely. It contends that Petitioner was not sentenced under § 924(e)(2)(B)(ii) and thus Johnson's reasoning is inapplicable to this case. Accordingly, the government states that the one-year timeframe in § 2255(f)(3) for bringing a newly recognized right is inapplicable, and Petitioner's claim is not allowed.

         II. Legal Standard

         Under 28 U.S.C. § 2255(a), a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the judge who receives the motion must properly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . . If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         The court must hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”[4] The petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence.[5] An evidentiary hearing is not necessary where a § 2255 motion contains factual allegations that are contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact.[6]

         III. Analysis

         Generally, there is a one-year limitation period from which a prisoner's judgment of conviction becomes final for which to file a § 2255 motion.[7] In this case, Petitioner's conviction became final on July 25, 2012. Petitioner filed his motion on June 13, 2016. He, however, brings his motion pursuant to § 2255(f)(3) which provides that the one-year limitation 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.” Petitioner contends that the Supreme Court's decision in Johnson, decided on June 26, 2015, established a newly recognized constitutional right that is applicable to cases on collateral review. The government asserts ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.