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United States v. Pizzino

United States District Court, E.D. Michigan, Southern Division

November 8, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT PIZZINO, Defendant. Civ. No. 16-cv-11309

          PRESENT Honorable Gerald E. Rosen United States District Judge.

          OPINION AND ORDER (1) DENYING DEFENDANT'S § 2255 MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          Gerald E. Rosen, United States District Judge.

         I. INTRODUCTION

         On May 21, 2009, Defendant Robert Pizzino pleaded guilty to one count of distribution of child pornography, 18 U.S.C. § 2252A(a)(2). On September 3, 2009, he was sentenced to a term of imprisonment of 180 months. On April 8, 2011, the Sixth Circuit Court of Appeals entered an Opinion vacating the sentence imposed on Pizzino and remanded the case for a resentencing to address Pizzino's nonfrivolous arguments for leniency. A resentencing hearing was held in accordance with the Sixth Circuit's ruling, and on September 13, 2011, Pizzino was again sentenced to a 180-month term of incarceration, with credit for the time served on the sentence previously imposed. The Sixth Circuit affirmed the new judgment, and on January 10, 2013, the U.S. Supreme Court denied Pizzino's petition for a writ of certiorari.

         On April 8, 2016, Pizzino filed the instant Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence. For the reasons set forth below, the Court concludes that Defendant's Motion is untimely and, therefore, will be denied.

         II. DISCUSSION

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes that state and federal prisoners have a one-year limitations period within which to file a habeas corpus petition or § 2255 motion. See 28 U.S.C. § 2255(f); Mayle v. Felix, 545 U.S. 644, 655, 125 S.Ct. 2562, 2569 (2005). Generally, this one-year period begins runs when the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). A conviction becomes final upon conclusion of direct review. See Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir.2004) (citing United States v. Cottage, 307 F.3d 494, 498 (6th Cir. 2002)). When a petition for a writ of certiorari is filed, the conviction becomes final when the writ is denied. United States v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 2002).

         In this case, therefore, to have been timely, Defendant's § 2255 motion had to have been filed one-year from January 10, 2013, when the Supreme Court denied his petition for a writ of certiorari -- i.e., by January 10, 2014. Pizzino, however, did not file his motion until April 8, 2016 -- more than two years after the time for filing a § 2255 motion had expired.

         The statute, however, provides an exception to this “one year from the date of conviction becomes final” rule: § 2255(f)(3) provides that if the Supreme Court creates a newly-recognized right, and makes that newly-recognized right retroactively applicable to cases on collateral review, then a § 2255 movant has one year from the date that new right was first recognized to file his motion. The newly-created right, logically would have to be relevant and applicable to the movant's argument.

         Defendant Pizzino here contends that his motion is timely because it was filed within a year of the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). Defendant argues that, in Johnson, the Supreme Court first recognized the “vagueness doctrine, ” the purported newly recognized right upon which he relies in arguing that his guilty plea should be set aside. See Memorandum in Support of § 2255 Motion, Dkt. # 53, p. 3.

         In Johnson, the Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) (the “ACCA”), which defines the term “violent felony” as including an offense that “involves conduct that presents a serious potential risk of physical injury to another” is unconstitutionally vague. Johnson is wholly inapplicable here. Pizzino was not sentenced pursuant to the ACCA, and the Act had no application whatsoever with regard to Defendant Pizzino's sentence for distribution of child pornography. Nor were the Career Offender Guidelines implicated in his case.[1]

         With respect to Pizzino's argument concerning the “vagueness doctrine” being a newly recognized right in Johnson, Defendant is mistaken. Johnson, did not recognize the vagueness doctrine as a new right. The void for vagueness doctrine is “an outgrowth . . . of the Due Process Clause of the Fifth Amendment, ” United States v. Paull, 551 F.3d 516, 525 (6th Cir. 2009), and it existed years before Johnson was decided. See, Connally v. Gen. Constr. co. 269 U.S. 385 (1926); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Kolender v. Lawson, 461 U.S. 352, 357 (1983).

         As the vagueness doctrine was in existence when Defendant's sentence became final on January 10, 2013, Pizzino would have had to have filed his § 2255 motion raising his vagueness argument within the following year. Because Pizzino did not file his motion before January 10, 2014, the present motion is untimely and statutorily barred. Accordingly, Defendant's § 2255 Motion will be DENIED.

         The Court will also deny a certificate of appealability. Before a Section 2255 movant may appeal an adverse decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the matter should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be ...


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