United States District Court, E.D. Michigan, Northern Division
OVERRULING OBJECTIONS, ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION, DENYING PETITIONER'S MOTION TO
VACATE SENTENCE, AND GRANTING CERTIFICATE OF APPEALABILTIY
AND LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
L. LUDINGTON United States District Judge.
April 30, 2008 an indictment was issued charging Defendant
Milik Turner with six counts of distributing heroin and one
count of possessing with the intent to distribute 28 grams or
more of cocaine base, all in violation of 21 U.S.C.
841(a)(1). See ECF No. 9. Turner pleaded guilty to
one count of distributing heroin pursuant to a Rule 11 plea
agreement on June 9, 2009. See ECF No. 36. On
September 17, 2009 Turner was sentenced as a career offender
to 188 months' imprisonment. Judgment was entered on
September 22, 2009. See ECF No. 18. Turner did not
file a direct appeal.
seven years later, on November 28, 2016, Petitioner Turner
filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255, arguing that his sentence was rendered
unconstitutional by the Supreme Court's decision in
Mathis v. United States, 136 S.Ct. 2243, 2251, 195
L.Ed.2d 604 (2016) (holding that, for the purpose of
determining whether an offense qualifies as a predicate under
the Armed Career Criminal Act, the court takes a categorical
approach, looking to the statutory elements of the offense
rather the particular means of commission). See ECF
No. 46. Turner specifically argued that, under the rule
articulated in Mathis, his prior controlled
substance offenses no longer qualified as predicate offenses
giving rise to his career offender status under the United
States Sentencing Guidelines.
motion was referred to Magistrate Judge Patricia T. Morris.
See ECF No. 48. On January 17, 2017 the magistrate
judge issued her report, recommending that Turner's
motion to vacate be denied. See ECF No. 29. The
magistrate judge reasoned that Turner's petition was
untimely because the Mathis decision had no bearing
on the controlled substance offenses giving rise to
Turner's career offender status. After obtaining an
extension, Turner filed objections to the report on February
17, 2017. See ECF No. 55.
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).
his objections, Turner first argues that his Mathis
claim is timely. 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
(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
(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). Turner effectively concedes that his
Mathis claim is not timely under § 2255(f)(1),
as it was raised over one year after his judgment became
final. Turner argues, however, that the claim is timely under
§ 2255(f)(3) because the Supreme Court in
Mathis recognized a new right that was made
retroactively applicable on collateral review. The argument
is without merit.
case announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction
became final.” Teague v. Lane, 489 U.S. 288,
301 (1989). In Mathis, the Supreme Court stated that
the essential rule governing ACCA cases had been articulated
over a quarter century ago: “All that counts under the
Act, we held then, are ‘the elements of the statute of
conviction.'” Id. (citing and quoting
Taylor v. United States,495 U.S. 575, 598, (1990)).
“Accordingly, a sentencing judge may look only to
‘the elements of the [offense], not to the facts of
[the] defendant's conduct.'” Id.
Through this language, the Supreme Court explained that it
was not recognizing any new right. Furthermore,
Petitioner has not identified any language making the
Mathis decision retroactive. See In re
Lott, 838 F.3d 522, 523 (5th Cir. 2016) (holding that a
petitioner had not made a prima facie showing that