United States District Court, W.D. Kentucky, Paducah
MEMORANDUM AND ORDER
B. RUSSELL, SENIOR JUDGE.
Bailey Anthony Davie filed a pro se motion to
vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 (DN 132). 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
Davie to show cause why his motion should not be denied as
entering a guilty plea, Davie was convicted on November 26,
2012, on one count of maintaining a drug-involved premises
for the purpose of distributing cocaine. He was sentenced to
110 months' imprisonment. Davie did not file a direct
appeal of his conviction. He filed the instant § 2255
motion on December 15, 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).
§ 2255 movant does not pursue a direct appeal to the
court of appeals, his conviction becomes final on the date on
which the time for filing such appeal expires. See
Sanchez-Caste llano v. United States, 358 F.3d 424, 428
(6th Cir. 2004). Judgment was entered in this case on
November 26, 2012. The judgment became final on December 10,
2012, upon the expiration of the fourteen-day period for
filing a notice of appeal. Davie had one year, or until
December 10, 2013, in which to timely file a motion under
§ 2255. Accordingly, Davie's motion was filed
approximate three years after the statute of limitations
expired. Under § 2255(f), therefore, Davie's motion
appears to be time-barred and subject to summary dismissal.
sole ground in support of his motion, Davie states, "In
light of Mathis and Hinkle, petitioner conviction for
trafficking in a controlled substance no longer qualify as a
predicate offense for the career offender enhancement."
Thus, the Court construes the motion as challenging
Davie's classification as a career offender under the
U.S. Sentencing Guidelines based on the recent Supreme Court
decision m Mathis v. United States, 136 S.Ct. 2243
(2016), as well as United States v. Hinkle, 832 F.3d
569 (5th Cir. 2016).
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 thatMathis "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