United States District Court, W.D. Kentucky, Paducah
MEMORANDUM AND ORDER
B. RUSSELL, SENIOR JUDGE.
Marcus Proctor has filed two pro se motions to
vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 (DNs 32 & 33). The motions are 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 first motion appears to
be barred by the applicable statute of limitations, the Court
will direct Proctor to show cause why the motion should not
be denied as untimely. Moreover, because the second motion
appears to be identical to the first, the Court will deny it
entering a guilty plea, Proctor was convicted on July 10,
2012, on two counts of knowingly and intentionally possessing
with the intent to distribute and distributing cocaine base
(Counts 1 & 2) and one count of knowingly and
intentionally possessing with the intent to distribute a
substance containing cocaine base (Count 3). He was sentenced
to a term of 188 months of imprisonment. Proctor did not file
a direct appeal of his conviction. He filed his first §
2255 motion, the one that is now before the Court, on June
16, 2017. In the motion, Proctor seems to challenge
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, 195
L.Ed.2d 604 (2016). Proctor states: “In light of
Mathis, Petitioner's convictions for possession of a
controlled substance w/ intent to deliver and possession in a
controlled substance no longer qualifies as predicate
offenses for the career offender enhancement.”
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
July 10, 2012. The judgment became final on July 24, 2012,
upon the expiration of the fourteen-day period for filing a
notice of appeal.
motion, Proctor effectively concedes that his § 2255
motion is not timely under § 2255(f)(1), as it
was raised over one year after his judgment became final.
Proctor seems to argue, however, that his motion is timely
§ 2255(f)(3) because his motion was
“filed within one year . . . of Mathis.” This
argument is without merit.
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 . . .”). Proctor
also mentions United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016), in his § 2255 motion. However, the