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United States v. Mitchell

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

February 28, 2017

UNITED STATES OF AMERICA, Plaintiff/ Respondent,
v.
MOSES LEROY MITCHELL, Defendant/ Petitioner.

          ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, DENYING PETITIONER'S MOTION TO VACATE SENTENCE, GRANTING GOVERNMENT'S MOTION TO DISMISS, DENYING CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS ON APPEAL

          THOMAS L. LUDINGTON United States District Judge

         On May 16, 2012 an indictment was issued charging Petitioner Moses Leroy Mitchell with eleven counts arising out of a series of armed bank robberies. See ECF No. 28. On December 20, 2012, Defendant Moses Lee Mitchell pleaded guilty to two counts of using or carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). On June 24, 2013, he was sentenced to a total of 35 years' imprisonment and order to pay restitution in the amount of $47, 489.57. See ECF No. 89. At the sentencing hearing Mitchell orally moved to withdraw his guilty plea. After the district court rejected his motion, Mitchell appealed. On August 25, 2014 the Sixth Circuit issued an opinion rejecting his appeal based on an appeal waiver included in his plea agreement. See ECF No. 104.

         Almost two years later, on June 7, 2016, Petitioner Mitchell filed his current motion to vacate pursuant to 28 U.S.C. § 2255, arguing that his conviction and sentence was rendered unconstitutional by the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (striking down the residual clause of the Armed Career Criminal Act as unconstitutionally vague). See ECF No. 118. That motion was referred to Magistrate Judge Patricia T. Morris. See ECF No. 120. Respondent moved to dismiss Mitchell's petition on June 18, 2016. See ECF No. 123. On January 18, 2017 the magistrate judge issued her report, recommending that Mitchell's motion to vacate be denied. See ECF No. 143. The magistrate judge reasoned that Johnson was inapplicable to Mitchell's conviction and sentence for armed robbery under § 924(c). Mitchell filed objections on February 8, 2017. See ECF No. 147.

         I.

         Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's report and recommendation. See Fed.R.Civ.P. 72(b)(2). Objections must be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If objections are made, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). De novo review requires at least a review of the evidence before the magistrate judge; the Court may not act solely on the basis of a magistrate judge's report and recommendation. See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept, reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich. 2002). Mitchell generally objects that the magistrate judge erred in determining that his petition was untimely, and erred in finding Johnson inapplicable to his conviction and sentence.

         A.

         A 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 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 making a motion by such governmental action;
(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.

§ 2255(f)(1)-(4). Mitchell's petition was filed over a year after his conviction became final under § 2255(f)(1). His petition does not allege that he was delayed by any governmental action under § 2255(f)(2), and his petition is not based on any newly discovered facts under § 2255(f)(4). Therefore, his petition is only timely if Mitchell asserts some right newly recognized by the Supreme Court and made retroactively applicable on collateral review.

         B.

         While it is true that the Supreme Court in Johnson and its progeny established a newly recognized right made retroactively applicable on collateral review, Johnson is inapplicable to Mitchell's conviction and sentence. In Johnson the United States Supreme Court struck down the residual clause of the Armed Career Criminal Act (“ACCA”) as unconstitutionally vague in violation of the due process clause of the Fifth Amendment. Id. The ACCA provides an enhanced penalty for persons who violate § 922(g) and have three previous convictions for a violent felony or serious drug offense, or both. The offending provision, 18 U.S.C. § 924(e)(2)(B)(ii), broadly defines violent felony as ...


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