United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION TO VACATE
SENTENCE, AND DENYING CERTIFICATE OF APPEALABILITY
H. CLELAND UNITED STATES DISTRICT JUDGE.
before the court is a Motion to Vacate Sentence (Dkt. #527)
filed pro se by Petitioner Dujuan Kennedy.
Petitioner also filed an addendum which he titled
“2255(f)(3 Habeas Corpus Motion, ” but which only
supplements the previous motion with additional case law.
(Dkt. #534.) The court will therefore consider the second
“motion” as if it had been included in the first.
Following Petitioner's addendum, the Government filed a
response (Dkt. #544) and Petitioner filed a reply (Dkt.
#546). After reviewing the briefs, the court concludes that
no hearing is necessary. For the following reasons, the court
will deny Petitioner's motion.
pled guilty to a number of marijuana and “crack”
cocaine offenses resulting in a sentence of 79 months'
imprisonment on August 6, 2007. (Dkt. #154.) The court later
issued an order which reduced his offense level and lowered
his sentence to 66 months on June 8, 2009. On June 28, 2016,
Petitioner filed the instant motion seeking to vacate his
sentence in light of Johnson v. United States, 135
S.Ct. 2551 (2015), and United States v. Blewett, 746
F.3d 647 (6th Cir. 2013)(en banc), on the basis that a
further reduction in the base offense level is warranted
resulting in a much lower sentencing range of 30 to 37
months. He also argues that he is entitled to a sentence
which reflects a reduced level of culpability.
response the Government argues that his petition is not
timely, that Johnson -which dealt with whether a
firearm violation could be used in a sentencing determination
that a defendant is a career criminal- is inapplicable
because Kennedy was not adjudged a career criminal, and that
Blewett held that changes to the operative mandatory
minimum sentencing provisions do not apply in Kennedy's
case where he was sentenced before the Fair Sentencing Act.
Petitioner's reply contends that racial disparities in
sentencing justify extending the favorable holding of
Johnson to his case.
28 U.S.C. § 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214, applies to all
habeas petitions filed after its effective date,
April 24, 1996, and imposes a one-year limitations period for
habeas petitions. See 28 U.S.C. §
2244(d)(1). A prisoner must file a federal habeas
corpus petition within one year of the “date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A) & (D).
filed the instant motion on June 17, 2016. (Dkt. #527.) This
is far more than one year after his judgment was entered in
2007 or even his resentencing in 2009. Petitioner argues that
a motion may be timely if it is made within one year of the
date that the right asserted was initially recognized by the
Court, which he contends to be June 26, 2015, the date that
Johnson was decided. However, as Respondents note,
Johnson is inapplicable since Petitioner was not sentenced as
a career criminal. Even if Johnson were read to
permit this very late filing, it does not justify a downward
adjustment in Petitioner's sentence. Petitioner's
motion is untimely and it will accordingly be denied.
CERTIFICATE OF APPEALABILITY
Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability (COA) is
issued under 28 U.S.C. § 2253. Rule 11 of the Rules
Governing Section 2255 Proceedings requires that a district
court must “issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” If the court issues a certificate, the
court must state the specific issue or issues that satisfy
the showing required by 28 U.S.C. § 2253(c)(2).”
Rule 11, Rules Governing Section 2255 Proceedings.
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Courts must either issue a certificate of appealability
indicating which issues satisfy the required showing or
provide reasons why such a certificate should not issue. 28
U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re
Certificates of Appealability, 106 F.3d 1306, 1307 (6th
Cir. 1997). To receive a certificate of appealability,
“a petitioner must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (internal quotes and citations omitted).
jurists would not debate the court's conclusion that the
petition is untimely. The court denies a certificate of