Filed: Jul. 01, 2014
Latest Update: Jul. 01, 2014
Summary: REPORT AND RECOMMENDATION ELIZABETH M. TIMOTHY, Magistrate Judge. This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255, and incorporated supporting memorandum of law (doc. 107). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides in part that "[i]f it plainly appears from the face of the motion and any attached exhibits and the record of prior proceedings that the moving party is not entitled to relief, t
Summary: REPORT AND RECOMMENDATION ELIZABETH M. TIMOTHY, Magistrate Judge. This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255, and incorporated supporting memorandum of law (doc. 107). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides in part that "[i]f it plainly appears from the face of the motion and any attached exhibits and the record of prior proceedings that the moving party is not entitled to relief, th..
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REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, Magistrate Judge.
This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, and incorporated supporting memorandum of law (doc. 107). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides in part that "[i]f it plainly appears from the face of the motion and any attached exhibits and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." After a review of the record, it is the opinion of the undersigned that the motion is untimely and that it should be summarily dismissed.1
BACKGROUND and ANALYSIS
On November 29, 2006, Defendant pleaded guilty to conspiracy to possess with intent to distribute five (5) kilograms or more of cocaine and fifty (50) grams or more of cocaine base and four counts of possession with intent to distribute five (5) grams or more of cocaine base (docs. 3, 54). In February of 2007, the district court sentenced him to a term of 240-months imprisonment (doc. 78). In 2012, Defendant filed a motion pursuant to 18 U.S.C. § 3582 seeking a further reduction in his sentence due to a retroactive amendment to the Sentencing Guidelines, which the district court denied initially and on reconsideration (docs. 97-101). Nothing further was filed until Defendant filed the instant motion to vacate pursuant to the prison mailbox rule2 on June 18, 2014 (doc. 107 at 8). Despite the fact that he entered a plea of guilty, Defendant now contends that he was deprived of a fair sentencing because a jury was not required to find each element of his offense beyond a reasonable doubt, pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013).
Title 28 U.S.C. § 2255(f) imposes a one-year time limitation on the filing of motions under this section. The one-year period of time runs 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 petitioner 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.
28 U.S.C. § 2255. Defendant contends that the instant motion is timely filed pursuant to § 2255(f)(3), because in Alleyne, which was decided on June 17, 2013, the Supreme Court recognized a new right, and that this new right is retroactively applicable on collateral review even if the Supreme Court has not declared it to be so. Defendant's argument regarding the retroactivity of Alleyne is misplaced, as numerous appellate courts—including the Eleventh Circuit—have held that Alleyne is not retroactively applicable on collateral review. See United States v. Harris, 741 F.3d 1245, 1250 n.3 (11th Cir. 2014); see also United States v. Redd, 735 F.3d 88, 91 (2d Cir. 2013); United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014); In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013); In re Mazzio, No. 13-2350, 2014 WL 2853722 (6th Cir. June 24, 2014); United States v. Miller, 542 F. App'x 526, 528 (7th Cir. 2013); In re Payne, 733 F.3d 1027, 1029-30 (10th Cir. 2013). Therefore, Defendant's reliance on Alleyne does not excuse the untimeliness of his motion, and it should be summarily dismissed.
CERTIFICATE OF APPEALABILITY
Rule 11(a), of the Rules Governing Section 2255 Proceedings, provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. § 2255-11(b).
After review of the record, the court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.
Based on the foregoing, it is respectfully RECOMMENDED:
1. The motion to vacate, set aside, or correct sentence (doc. 107) be summarily DENIED and DISMISSED as untimely.
2. A certificate of appealability be DENIED.
