United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING MOTION TO FILE A REPLY AND DENYING
MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
Corbett O'Meara United States District Judge.
matter came before the court on petitioner Tyvon Maurice
Brooks' June 24, 2016 Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody. The government filed a response December 14,
2016. Petitioner Brooks filed a Motion for Leave to File
Traverse to Government's Answer to § 2255 Motion on
January 20, 2017. The court will grant the latter motion and
accept Petitioner's proposed “traverse-reply”
as a reply to the instant motion.
September 10, 2013, defendant Brooks and Hakiem Hassan Josey,
his co-defendant, approached a woman leaving a convenience
store. As she got into her minivan, the two men approached,
pointed a gun at her, and demanded her car. The victim,
fearing for her life, immediately drove away and reported the
incident to police. The men fled on foot; and while police
were in pursuit, defendant Brooks threw the gun into some
bushes. Following their arrests, both men confessed to
November 6, 2014, Brooks entered a guilty plea to one count
of attempted carjacking and one count of using a firearm
during and in relation to a crime of violence. The court, on
April 28, 2015, sentenced Brooks to 94 months'
imprisonment. Brooks filed this motion June 24, 2016.
to 28 U.S.C. § 2255(a),
A prisoner in custody under a sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence imposed was in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such a sentence, 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 on a § 2255 motion, "a petitioner must
demonstrate the existence of an error of constitutional
magnitude which has 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). A movant 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.
28 U.S.C. § 2255(b), evidentiary hearings are not
required if "the motion and the files and records of the
case conclusively show that prisoner is entitled to no
relief." Because the files and records of this case
conclusively show that Petitioner is not entitled to relief,
an evidentiary hearing is unnecessary; and the court will
rule on this matter on the briefs submitted.
initial matter, petitioner Brooks' motion is time barred,
as it was filed outside the statute of limitations. A motion
to vacate under 28 U.S.C. § 2255 must be filed within
one year of “the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(f)(1).
When a defendant does not file a timely appeal to the court
of appeals, like petitioner Brooks in this case, “the
judgment becomes final upon the expiration of the period in
which the defendant could have appealed to the court of
appeals, even when no notice of appeal was filed.
Sanchez-Castellano v. United States, 358 F.3d 424,
426 (6th Cir. 2004). In most cases, that period is
one year and 14 days from the date the judgment appears on
the docket. Brooks' judgment was entered April 30, 2015;
and he did not file an appeal. Therefore, his § 2255
motion was due no later than May 14, 2016. His motion, filed
June 24, 2016, is not timely.
§ 2255 provides a separate, one-year statute of
limitations to file a motion that runs from “the date
on which the right asserted was initially recognized by the
Supreme Court, ” as with the Johnson claim in
Petitioner's Ground Two, that provision also requires
that the right be “retroactively applicable to cases on
collateral review.” 28 U.S.C. § 2255(f)(3).
However, Johnson is not retroactive on collateral
review except in cases involving the Armed Career Criminal
Act (“ACCA”). Moreover, the Supreme Court has not
applied the Johnson holding to 18 U.S.C. §
924(c) at all, much less made it retroactive on collateral
review. This case does not involve the ACCA; therefore, the
Court's ruling in Johnson does not excuse
petitioner Brooks' untimely filing of his petition.
Brooks' petition were timely, it would be denied by the
court. The Supreme Court's holding in Johnson
does not affect the residual clause of § 924(c). For
purposes of 18 U.S.C. § 924(c), the term “crime of
violence” is defined as a felony that:
(A) has as an element the use, attempted use, or threatened
use of physical force against a person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the ...