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Smithers v. United States

United States District Court, W.D. Kentucky, Louisville

July 14, 2017

JAMEL T. SMITHERS MOVANT/DEFENDANT
v.
UNITED STATES OF AMERICA RESPONDENT/PLAINTIFF

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge

         Movant Jamel T. Smithers filed a pro se motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (DN 70). 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 Smithers to show cause why his motion should not be dismissed as barred by the applicable statute of limitations. Smithers filed a response to the Show Cause Order. Upon review, for the reasons set forth below, the Court will deny the motion as untimely.

         I.

         After entering a guilty plea, Smithers was convicted on March 5, 2007, on one count of posession with intent to distribute 50 grams or more of crack cocaine and one count of possession with intent to distribute cocaine. He was sentenced to 262 months' imprisonment. Smithers did not file a direct appeal of his conviction. He filed the instant § 2255 motion on March 7, 2017.[1]

         II.

         Section 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 final;
(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 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.

See § 2255(f).

         When a § 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 March 5, 2007. The judgment became final on March 19, 2007, upon the expiration of the ten-day period for filing a notice of appeal.[2] Smithers had one year, or until March 19, 2008, in which to timely file a motion under § 2255. Accordingly, Smithers's motion was filed almost nine years after the statute of limitations expired. Under § 2255(f), therefore, Smithers's motion appears to be time-barred and subject to summary dismissal.

         In the motion, Smithers 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, “The sole ground seeking relief is being raised for the first time because the Supreme Court recently decided the Mathis decision, thus, apprising Defendant to the Court's erroneous use of the ‘categorical approach' when it imposed sentence.”

         However, despite Smithers's arguments to the contrary in his memorandum in support of his § 2255 motion, 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[]'”) (quoting § 2255(h)(2)); Atkinson v. United States, No. 1:16-cv-67, 2017 U.S. Dist. LEXIS 51049, at *5-6 ...


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