United States District Court, W.D. Michigan, Southern Division
T. NEFF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Movant's motion to
vacate, set aside or correct sentence under 28 U.S.C. §
2255. (ECF No. 1.) On September 12, 2016, the Government
filed a response in opposition. (ECF No. 9.) The Court
appointed counsel and stayed the motion, pending the Supreme
Court's decision in Beckles v. United States, __
U.S.__, 2017 WL 855781 (Mar. 6, 2017), and ordered Movant to
file supplemental briefing post-Beckles. (ECF No.
15.) On March 29, 2017, Movant filed a supplemental brief,
explaining that his challenge to the Sentencing Guidelines
enhancement does not survive Beckles but that he
does not intend to abandon his claims based on Mathis v.
United States, 136 S.Ct. 2243 (2016). (ECF No. 18.) For
the reasons that follow, Movant's § 2255 motion is
26, 2012, a grand jury indicted Movant on one count of
possession with intent to distribute cocaine base, being a
felon in possession of a firearm, and carrying a firearm
during a drug-trafficking crime. (Indictment, United
States v. Atkinson, No. 1:07-cr-26 (W.D. Mich.), ECF No.
1.) On May 15, 2007, Movant pleaded guilty to being a felon
in possession of a firearm and carrying a firearm during a
drug-trafficking crime. (Change of Plea Hrg. Tr.,
id. at ECF No. 32.) In exchange for Movant's
guilty plea, the government agreed to dismiss the remaining
count. (Plea Agreement ¶ 6, id. at ECF No. 27,
PageID.58.) The Court sentenced Movant to 240 months in
prison, based on the career-offender Guideline, U.S.S.G.
§ 4B1.1. (J., id. at ECF No. 37; PSR ¶ 42,
id. at ECF No. 65, PageID.385.)
appealed his sentence, challenging his career-offender
designation and alleging ineffective assistance of counsel.
United States v. Atkinson, 354 F.App'x 250, 253
(6th Cir. 2009). The Sixth Circuit remanded the case for
resentencing to allow for the district court's
consideration of the then-recent Guideline amendment.
Id. at 253-54. On remand, this Court declined to
find that the convictions should not be counted separately,
and imposed the same sentence. (Am. J., Atkinson,
No. 1:07-cr-26, ECF No. 56, PageID.335-36.) Movant appealed
once more, and on June 28, 2011, the Sixth Circuit affirmed
Movant's sentence. United States v. Atkinson,
427 F.App'x 420 (6th Cir. 2011).
2012, Movant filed a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255, asserting eight
grounds for relief, which the Court denied. (Mot.,
Atkinson v. United States, No. 1:12-cv-831 (W.D.
Mich.), ECF No. 1; J., ECF No. 19.) On January 25, 2016,
Movant filed another § 2255 motion, asserting a claim
under United States v. Johnson, 135 S.Ct. 2551
(2015). (ECF No. 1.) In February 2016, the Court transferred
this § 2255 motion to the Sixth Circuit to determine
whether Movant should be permitted to file a second §
2255 motion, as required by 28 U.S.C. § 2244. (ECF No.
4.) The Sixth Circuit granted authorization and remanded the
case, finding that Movant had made a prima facie
showing that he was entitled to relief under
Johnson. (Order, ECF No. 6.)
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, that the court was
without jurisdiction to impose such a sentence, that the
sentence was in excess of the maximum authorized by law, or
that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion
“‘a petitioner must demonstrate the existence of
an error of constitutional magnitude which had a substantial
and injurious effect or influence on the guilty plea or the
jury's verdict.'” Humphress v. United
States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
errors are generally outside the scope of § 2255 relief.
United States v. Cofield, 233 F.3d 405, 407 (6th
Cir. 2000). A petitioner can prevail on a § 2255 motion
alleging non-constitutional error only by establishing a
“fundamental defect which inherently results in a
complete miscarriage of justice, or, an error so egregious
that it amounts to a violation of due process.”
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (quoting United States v. Ferguson, 918 F.2d
627, 630 (6th Cir. 1990) (internal quotations omitted)).
general rule, claims not raised on direct appeal are
procedurally defaulted and may not be raised on collateral
review unless the petitioner shows either (1)
“cause” and “actual prejudice” or (2)
“actual innocence.” Massaro v. United
States, 538 U.S. 500, 504 (2003); Bousley v. United
States, 523 U.S. 614, 621-22 (1998); United States
v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective
assistance of counsel claim, however, is not subject to the
procedural default rule. Massaro, 538 U.S. at 504.
An ineffective assistance of counsel claim may be raised in a
collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.
Anti-terrorism and Effective Death Penalty Act
(“AEDPA”) sets a one-year statute of limitations
from the date of the final judgment for § 2255 petitions
or the date on which the right asserted was initially
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review. 28 U.S.C. §
2255(f). A judgment is final 90 days from the appellate
mandate. Clay v. United States, 537 U.S. 522 (2003).
26, 2015, the Supreme Court held that the Armed Career
Criminal Act's (“ACCA”) “residual
clause”-which defined a “violent felony” to
include an offense that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another, ” 18 U.S.C. § 924(e)(2)(B)(ii)-is
unconstitutionally vague in violation of due process.
Johnson, 135 S.Ct. at 2563. In Welch v. United
States, 136 S.Ct. 1257 (2016), the Supreme Court held
that Johnson applied retroactively on collateral
review. Therefore, Movant had one year from the date on which
the right asserted was initially recognized by the Supreme
Court-July 26, 2015-to file his § 2255 petition raising
a Johnson claim. 28 U.S.C. § 2255(f)(3). Movant
filed within that one-year period; thus, his Johnson
claim is timely.
Movant's Johnson claim does not survive the
Supreme Court's decision in Beckles, which he
acknowledges. (ECF No. 18, PageID.156-57.) Despite this fact,
Movant further argues that one of his prior convictions was
not a crime of violence, in light of the Supreme Court's
decision in Mathis. (Id. at PageID.157-58.)
Unlike Johnson, the Supreme Court has not held that
Mathis is a new rule made retroactive on collateral
review. In fact, the Supreme Court explicitly noted that,
“[f]or more than 25 years, we have repeatedly made
clear that application of the ACCA involves, and involves
only, comparing elements.” Mathis, 136 S.Ct.
at 2257. Rather than announce a new rule, the Supreme Court
explained that “the elements-based approach remains the
law.” Id. Further, Mathis addressed
an issue of statutory interpretation, not a ...