United States District Court, E.D. Michigan, Southern Division
PRESENT Honorable Gerald E. Rosen United States District
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
E. Rosen, United States District Judge.
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.
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
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).
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
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.
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.
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.
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).
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.
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