United States District Court, E.D. Michigan, Northern Division
ORDER DEYNING MOTION TO VACATE SENTENCE UNDER 28
U.S.C. § 2255, GRANTING MOTION TO DISMISS, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO
PROCEED IN FORMA PAUPERIS ON APPEAL
HONORABLE THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.
January 27, 2014, Petitioner Maxine C. Pochmara was sentenced
to twenty-four months of imprisonment after pleading guilty
to conspiring to defraud the United States, concealing and
covering up by trick, scheme, or device a material fact, and
providing false information to the Social Security
Administration. ECF No. 107. Petitioner did not file a direct
appeal. On September 29, 2016, Petitioner filed a motion to
vacate her sentence under 28 U.S.C. § 2255. Petitioner
argues that she should be granted relief because she had only
a “minor role” in the offense. On October 6,
2016, the Court ordered the Government to respond to
Pochmara's motion. ECF No. 184. On October 21, 2016, the
Government filed a motion to dismiss Pochmara's petition
for relief under § 2255 as untimely. For the following
reasons, the Court will dismiss Pochmara's motion.
motion seeking relief under § 2255 is untimely if it is
not filed within a “1-year period of limitation. 28
U.S.C. § 2255(f). “That limitation period 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.
Id. at (f)(1)-(4).
did not appeal her conviction. And judgment was entered in
Pochmara's case on January 1, 2014. Accordingly, her
conviction became final for the purposes of § 2255(f)(1)
on February 14, 2014. Johnson v. United States, 457
F. App'x 462, 465 (6th Cir. 2012) (explaining that a
conviction becomes final for § 2255 purposes ten days
after entry of judgment if the conviction is not appealed to
the Sixth Circuit); Fed. R. App. P. 4(b)(1)(A)(ii) (now
providing fourteen days for filing a notice of appeal in a
criminal case). Because more than one year has passed since
her conviction became final, Pochmara cannot rely upon §
2255(f)(1) to assert the timeliness of her motion. Pochmara
might alternatively be relying on § 2255(f)(3). However,
the “minor role” amendment which Pochmara is
basing her claim for relief upon has not been made
retroactively applicable on collateral review.
Aguas-Landaverde v. United States, No.
2:15-CR-00183, 2016 WL 5341799, at *2 (S.D. Ohio Sept. 23,
2016), report and recommendation adopted, No.
2:15-CR-00183(2), 2016 WL 6070480 (S.D. Ohio Oct. 17, 2016).
Pochmara's motion for relief under § 2255 is
untimely and will be denied.
Petitioner may appeal this Court's dispositive decision,
a certificate of appealability must issue. See 28
U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
When a court rejects a habeas claim on the merits, the
substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the district
court's assessment of the constitutional claim debatable
or wrong. See Slack v. McDaniel, 529 U.S. 473,
484-85 (2000). “A petitioner satisfies this standard by
demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003). In applying that standard, a district court may
not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit
of the petitioner's claims. Id. at 336-37.
“The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
considered the matter, the Court concludes that Petitioner
has failed to make a substantial showing of the denial of a
constitutional right. Accordingly, a certificate of
appealability is not warranted in this case. The Court
further concludes that Petitioner should not be granted leave
to proceed in forma pauperis on appeal, as any
appeal would be frivolous. See Fed. R. App. P.
it is ORDERED that Petitioner Maxine Pochmara's motion to
vacate her sentence under 28 U.S.C. § 2255, ECF No. 181,
further ORDERED that the Government's motion to dismiss
the 28 U.S.C. § 2255 motion as ...