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United States v. Hollingsworth

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

December 15, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
NICHOLE HOLLINGSWORTH, Defendant.

          MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 (Doc. 180)

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I.

         This is 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.

         Before 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.

         II.

         Title 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."

         To 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)).

         III.

         A.

         The government first says that the motion is untimely. Subsection 2255(f) states:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run 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 movant was prevented from ...

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