United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on United States Magistrate Judge
Robert E. Wier's Report and Recommendation (DE 1209)
filed July 22, 2016, and defendant Xavier Green's motion
to reopen the time to appeal the denial of his initial §
2255 motion. (DE 1178; DE 1226).
December 2012, defendant Green pleaded guilty to conspiring
to distribute cocaine and to distributing cocaine. (DE 344).
Section four of the plea agreement noted Green's
admission to a prior felony drug conviction, and his
understanding that, consequently, the statutory minimum
sentence for the conspiracy charge was ten years. (DE 344,
Plea Agreement at 4). The plea agreement also set forth the
parties' belief that Green qualified as a career offender
under the United States Sentencing Guidelines. (DE 344, Plea
Agreement at 5-6). On December 17, 2013, this Court sentenced
Green to the statutory minimum sentence of 120 months of
imprisonment. (DE 852, Transcript at 16). The Court exercised
its discretion to vary from Green's then-undisputed
guideline range of 262-327 months of imprisonment. (DE 852,
Transcript at 3).
moves, again, for post-conviction relief under 28 U.S.C.
§ 2255 based on the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015). The
Johnson Court held that the residual clause of the
Armed Career Criminal Act is unconstitutionally vague. Green
asserts that Johnson likewise invalidates the
textually identical U.S.S.G. § 4B1.2(a) career offender
residual clause, which was used in calculating Green's
guideline range. This Court denied Green's initial
application for § 2255 relief because Green's
120-month sentence was based on the applicable statutory
minimum resulting from his prior drug conviction-120
months-not the guideline range resulting from his career
offender status-262-327 months. Thus, the Johnson
decision was inapplicable to Green's sentence.
Motion to Reopen
Court denied Green's initial application under 28 U.S.C.
§ 2255 on April 27, 2016. (DE 1178; DE 1179). A copy of
the order and a copy of the judgment were mailed to Green at
FCI Manchester, where he was, and continues to be,
incarcerated. (DE 1170-1; DE 1226-1; DE 1249-1). Time for
filing a notice of appeal of that order elapsed sixty days
thereafter. Fed. R. App. P. 4(a)(1)(B). Nonetheless, Green
now moves to reopen the time for him to file his notice of
appeal pursuant to Federal Rule of Appellate Procedure
4(a)(6). That rule permits reopening if: (A) a party fails to
receive notice within twenty-one days after the entry of the
judgment or order sought to be appealed; (B) the motion to
reopen is filed within the earlier of 180 days of entry or
fourteen days of the party receiving notice; and (C) no party
would be prejudiced. Fed. R. App. P. 4(a)(6).
states that he received a response from the Clerk of Court on
July 12, 2016, informing him that his § 2255 motion had
been denied. (DE 1226). With this timeline, because 180 days
had not yet elapsed, Green had, at most, fourteen days from
that date to submit a motion to reopen the time to file a
notice of appeal. Fed. R. App. P. 4(a)(6)(B). His motion was
filed more than a month later. Accordingly, Green's
motion to reopen can be denied as untimely.
supposing Green's motion to be timely, this Court still
has the discretion to deny a motion to reopen time to file an
appeal, even where the movant has complied with all three
express conditions imposed by Federal Rule of Appellate
Procedure 4(a)(6). See Kuhn v. Sulzer Orthopedics,
Inc., 498 F.3d 365, 369 (6th Cir. 2007).
Evans v. United States, the Sixth Circuit addressed
a defendant's motion to reopen time to file an appeal.
165 F.3d 27 (unpublished table decision), available at No.
96-1962, 1998 WL 598712, at *2 (6th Cir. Aug. 28, 1998).
There, in circumstances similar to here, the defendant
claimed to have never received formal notice of the district
court's denial of his § 2255 motion. Id.
review, the Sixth Circuit found that it was not an abuse of
discretion for the district court to deny the motion
“given that Defendant failed to provide any supporting
evidence for his contention that he never received
notice.” Id. However, “[w]hen a movant
specifically denies receipt of notice, a district judge must
then weigh the evidence and make a considered factual
determination concerning receipt, rather than denying the
motion out of hand based upon proof of mailing.”
Id. (citing Nunley v. City of Los Angeles,
52 F.3d 792, 796 (9th Cir. 1995)). Still, the movant bears
the burden of proving non-receipt. Id.
like the defendant in Evans, Green did not provide
the Court with anything other than his denial. Further,
Green's address has not changed and both the docket sheet
and the office of the Clerk of Court confirm that a copy of