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United States v. Chanona-Hernandez

United States District Court, E.D. Kentucky, Central Division, Lexington

February 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAN CHANONA-HERNANDEZ, Defendant.

          MEMORANDUM OPINION & ORDER

          JOSEPH M. HOOD, SENIOR U.S. DISTRICT JUDGE

         This matter is before the Court on the Recommended Disposition entered by Magistrate Judge Hanly A. Ingram [DE 458]. Said action was referred to the magistrate for the purpose of reviewing the merit of Defendant's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255 [DE 456]. In his Report and Recommendation, the Magistrate Judge recommends that the Court dismiss Chanona-Hernandez's Motion as untimely in light of the one year statute of limitations for claims brought under 28 U.S.C. § 2255(f). Defendant has filed Objections [DE 463] to that Recommendation in a timely fashion, and this matter is ripe for consideration. For the reasons stated below, the Motion will be denied as time-barred. Judgment will issue by separate order.

         I.

         Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's report and recommendation. See Fed. R. Civ. P. 72(b)(2). If objections are made, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). Objections must be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). “Only those specific objections to the magistrate's report made to the district court will be preserved for appellate review.” Carson v. Hudson, 421 F.App'x 560, 563 (6th Cir. 2011) (quoting Souter v. Jones, 395 F.3d 577, 585-86 (6th Cir. 2005)).

         II.

         On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective. Section 2255 provides in relevant part:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of -
(1) the date on which the judgment becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution of laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(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 exercise of due diligence.

28 U.S.C. § 2255(f).

         Defendant pleaded guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h), and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) on August 1, 2011. He was sentenced and an amended judgment was entered on November 3, 2011, and he did not appeal his sentence. The Court has already denied his motion to reduce his sentence pursuant to Amendment 782 and 18 U.S.C. § 3582 [DE 430] and his motion to reconsider that decision [DE 441]. He now asks the Court, by virtue of his June 21, 2016 Petition, to grant him relief under Johnson v. United States, 135 S.Ct. 2551 (2015) [DE 456] arguing that it should apply retroactively to his sentence.

         The Magistrate Judge recommends denying Petitioner's request for a because Defendant was sentenced not under the “residual clause” portion of the definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), but under § 924(c)(1)(A) for possessing a firearm “during and in relation to any . . . drug trafficking crime.” As such, the Magistrate Judge recommends that Defendant's Petition be denied as untimely, since he cannot rely on Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), to invoke § 2255(f)(3). In his objections, Defendant argues that Johnson should apply to all convictions under § 924(c), asking this Court to lump together those sentences for using or carrying a firearm during a crime of violence (the “residual clause”) and those for using or carrying a firearm during a “drug trafficking crime[s]”, citing In re: Pinder, 824 F.3d 977 (11th Cir. 2016), because the language in subsections (c) and (e) is very similar and both are penal statutes. Pinder does not suggest that all cases under § 924(c)(1)(A), including those for using or carrying a firearm during a “drug trafficking ...


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