United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION
TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 (Doc.
COHN UNITED STATES DISTRICT JUDGE
a criminal case. In 2013, defendant was sentenced to 15 years
imprisonment (the mandatory minimum) following her plea of
guilty to conspiracy to produce child pornography, in
violation of 18 U.S.C. § 2251.
the Court is defendant's motion to vacate under 28 U.S.C.
§ 2255. Defendant says she is entitled to relief from
her sentence based on the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015) and
on the grounds that she should have been given a mitigating
role adjustment. See Docs. 180, 186. The government filed a
response (Doc. 188), contending that the motion should be
denied as untimely and for lack of merit. The Court agrees.
The reasons follow.
28 U.S.C. § 2255 provides:
"A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
... or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to
vacate, set aside or correct the sentence."
prevail under § 2255, Petitioner must show a
“fundamental defect which inherently results in a
complete miscarriage of justice." U.S. v.
Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v.
U.S., 368 U.S. 424, 428 (1962)).
government first says that the motion is untimely. Subsection
(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
(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 ...