United States District Court, W.D. Kentucky
B. Russell, United States District Court Senior Judge
Donnell Lorenzo Brodie filed a pro se motion to
vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 (DN 37). The Court reviewed the motion
under Rule 4 of the Rules Governing Section 2255 Cases in the
United States District Courts. Upon review, the Court
directed Brodie to show cause why his motion should not be
dismissed as barred by the applicable statute of limitations.
Brodie did not file a response to the Show Cause Order. Upon
review, for the reasons set forth below, the Court will deny
the motion as untimely.
FACTUAL AND PROCEDURAL BACKGROUND
entering a guilty plea, Brodie was convicted on January 16,
2013, on three counts of knowingly and intentionally
possessing with intent to distribute and distributing
crack/cocaine base (Counts 1, 2, and 3) and one count of
knowingly and intentionally possessing with the intent to
distribute and distributing powder cocaine (Count 5). He was
sentenced to 120 months' imprisonment. Brodie did not
file a direct appeal of his conviction. He filed the instant
§ 2255 motion on December 4, 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-Castellano v. United States, 358 F.3d 424, 428
(6th Cir. 2004). Judgment was entered in this case on
December 21, 2012. The judgment became final on January 4,
2013, upon the expiration of the fourteen-day period for
filing a notice of appeal. Brodie had one year, or until
January 4, 2014, in which to timely file a motion under
§ 2255. Accordingly, Brodie's motion was filed
almost three years after the statute of limitations had
expired. Under § 2255(f), therefore, Brodie's motion
appears to be time-barred and subject to summary dismissal.
motion, Brodie 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, “[T]he
sole ground being raised in this § 2255(a) - (f)(4)
petition is being raised for the first time in this instant
petition due to the retroactivity of the Supreme Court case
of Mathis v. United States.” In a subsequent letter (DN
38), Brodie states that he filed his motion pursuant to
“28 U.S.C. § 2255(f)(4), in light of United
States v. Hinkle, 2016 U.S. App. LEXIS 14810, No.
15-10067 (Aug. 11, 2016), which as made the substantive
ruling in Mathis v. United States, retroactive to
collateral review in this jurisdiction.” However,
contrary to Brodie's assertions, the Supreme Court's
decision in 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'”) (citing 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. Dist. LEXIS 36302, at* 4-5 (S.D.
Ohio Mar. 14, 2017) (concluding that “Mathis
did not create a new substantive right which is applicable to
cases pending on collateral review . . .”). Moreover,
although Brodie suggests that the decision in United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016),
demonstrates that Mathis should apply retroactively
to cases on collateral review, the Fifth Circuit did not make
such a determination in Hinkle. The case was in fact
decided on direct appeal and not on collateral review.
Id. at 570.
Brodie's § 2255 motion is subject to the one-year
limitations period of ...