United States District Court, W.D. Kentucky, Louisville
MEMORANDUM AND ORDER
B. RUSSELL, SENIOR JUDGE.
Hannibal Butler filed apro se motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. §
2255 (DN 68). The motion is now before the Court for
preliminary review pursuant to Rule 4 of the Rules Governing
Section 2255 Proceedings for the United States District
Courts. Because the motion appears to be barred by the
applicable statute of limitations, the Court will direct
Butler to show cause why his motion should not be denied as
entering a guilty plea, Butler was convicted on April 25,
2006, on one count of possession with intent to distribute
500 grams or more of cocaine and one count of possession with
intent to distribute 50 grams or more cocaine base. He was
sentenced to 262 months' imprisonment. Butler appealed
his conviction to the Sixth Circuit Court of Appeals, which
affirmed on January 22, 2007. He also filed a petition for
writ of certiorari in the Supreme Court. The petition was
denied on June 29, 2007. He filed the instant § 2255
motion on December 16, 2016.
2255 provides for a one-year limitations period, which shall
run from the latest of:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(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.
See § 2255(f).
conviction became final on the date the Supreme Court denied
his petition for writ of certiorari, or June 29, 2007.
Butler, therefore, had until June 29, 2008, to file his
§ 2255 motion. Accordingly, Butler's motion was
filed more than eight years after the statute of limitations
expired. Under § 2255(f), therefore, Butler's motion
appears to be time-barred and subject to summary dismissal.
motion, Butler challenges his classification as a career
offender under the U.S. Sentencing Guidelines based on the
recent Supreme Court decision in Mathis v. United
States, 136 S.Ct. 2243 (2016). He states, "In light
of Mathis, Petitioner convictions for posession of controlled
substance and trafficking in a controlled substance, no
longer qualifies as predicate offenses for the Career
the Supreme Court's decision m Mathis did not
create a new rule of law which applies retroactively to cases
on collateral review. See Tyler v. Cain, 533 U.S.
656, 663 (2001) ("[A] new rule is not made retroactive
to cases on collateral review unless the Supreme Court holds
it to be retroactive."). The Supreme Court gave no
indication in Mathis that it intended its holding to
be applied retroactively to cases on collateral review.
See In re Lott,838 F.3d 522, 523 (5th Cir. 2016)
(finding that inmate "failed to make a prima facie
showing that Mathis . . . set forth new rules of
constitutional law that have been made retroactive to cases
on collateral review); United States v. Taylor, No.
16-6223, 2016 U.S. App. LEXIS 21701, at *12 (10th Cir. Dec.
6, 2016) (holding that 'Mathis did not announce
a new rule"); Box v. United States, No.
16-2546, 2016 U.S. App. LEXIS 20373, at *2 (7th Cir. Jul. 20,
2016) (finding that Mathis "does not announce
'a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court'")
(quoting 28 U.S.C. § 2255(h)(2)); Atkinson v. United
States, No. 1:16-cv-67, 2017 U.S. Dist. LEXIS 51049, at
*5-6 (W.D. Mich. Apr. 4, 2017) (finding that
'Mathis did not announce a new constitutional
rule"); United States v. King, No. 2:09-cr-166,
2017 U.S. ...