United States District Court, W.D. Kentucky, Louisville
JAMEL T. SMITHERS MOVANT/DEFENDANT
UNITED STATES OF AMERICA RESPONDENT/PLAINTIFF
Charles R. Simpson III, Senior Judge
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
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.
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
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. 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.
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
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 ...