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United States v. Bridgewater

United States District Court, W.D. Kentucky, Bowling Green Division

July 20, 2017

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
KENNETH WAYNE BRIDGEWATER DEFENDANT/MOVANT

          MEMORANDUM OPINION

          JOSEPH H. MCKINLEY, JR., CHIEF JUDGE

         Defendant/Movant Kenneth Wayne Bridgewater pro se filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (DN 81). On preliminary consideration under Rule 4 of the Rules Governing Section 2255 Cases in the United States District Courts, the Court ordered Bridgewater to show cause why his motion should not be denied and his action dismissed as untimely. Bridgewater has not filed a response.

         In 2005, Bridgewater pleaded guilty to multiple counts of possession with intent to distribute cocaine and cocaine base and was sentenced to a total term of 188 months in prison. He appealed, and the Sixth Circuit Court of Appeals affirmed on July 26, 2006. He did not file a petition for writ of certiorari in the Supreme Court. On December 22, 2016, Movant filed this § 2255 motion.[1]

         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).

         As the Court explained in its show-cause Order, under § 2255(f)(1), the one-year limitations period began running on October 25, 2006, and expired one year later on October 25, 2007. See Clay v. United States, 537 U.S. 522, 532 (2003) (“We hold that, for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires.”). Bridgewater's motion was filed on December 22, 2016. Accordingly, Bridgewater's motion was filed over nine years after the statute of limitations expired.

         In the motion, Bridgewater states that he is relying on a new rule of law from “Johnson vs U.S., Welch vs U.S., [and] Mathis vs U.S., ” which the Court assumes to be citations to Johnson v. United States, 135 S.Ct. 2551 (2015); Welch v. United States, 136 S.Ct. 1257 (2016); and Mathis v. United States, 136 S.Ct. 2243 (2016).

         However, Bridgewater's citation to Johnson does not overcome the one-year statute of limitations barrier. Bridgewater filed his motion more than a year after Johnson, although less than a year after the Welch decision.

         Johnson held unconstitutional the residual clause of the Armed Career Criminal Act, 135 S.Ct. at 2563, and the Supreme Court noted in Welch v. United States, 136 S.Ct. 1257, 1268 (2016), that “Johnson is retroactive in cases on collateral review[.]” The operative date is “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.” 28 U.S.C. § 225(f)(3). Here, the new rule announced in Johnson, made retroactively applicable to cases on collateral review, was recognized by the Supreme Court on June 26, 2015. See, e.g., Story v. United States, No. 213CR55JRGMCLC1, 2016 WL 7077616, at *2 (E.D. Tenn. Dec. 2, 2016) (“[T]he new right on which Petitioner relies was first recognized in the Johnson decision, which the Supreme Court decided on June 26, 2015.” (citing Johnson, 135 S.Ct. at 2551.)) Thus, filing the § 2255 motion within one year of Welch but not Johnson does not make Bridgewater's motion timely.

         In addition, Bridgewater's motion was filed within one year of the Supreme Court's Mathis decision, to which Bridgewater also cites. However, 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.”) (internal quotation marks omitted). 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) (per curiam) (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 WL 7093905, at *4 (10th Cir. Dec. 6, 2016) (holding that “Mathis did not announce a new rule”); Atkinson v. United States, No. 1:16-cv-67, 2017 WL 1227876, at *2 (W.D. Mich. Apr. 4, 2017) (finding that “Mathis did not announce a new ...


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