United States District Court, W.D. Kentucky
B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT
Marcus Proctor has filed a pro se motion to vacate,
set aside or correct his sentence pursuant to 28 U.S.C.
§ 2255 (DN 32). 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
Proctor to show cause why his motion should not be dismissed
as barred by the applicable statute of limitations. Proctor
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, 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 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).
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
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
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 under
§ 2255(f)(3) because his motion was “filed within
one year . . . of Mathis.” This argument is without
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