United States District Court, E.D. Michigan, Northern Division
ORDER 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
HONORABLE THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.
October 21, 2013, Petitioner Anthony Tyrone Snow pled guilty
to Count 1 of the Information charging him with distribution
of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
See ECF No. 14. On March 25, 2014, judgment was
entered and Petitioner was sentenced as a career offender to
140 months' incarceration. See ECF No. 23.
Petitioner did not file any appeal.
April 25, 2016 Petitioner filed a motion to vacate his
sentence under 28, U.S.C. § 2255, arguing that his
sentence was rendered unconstitutional by the Supreme
Court's decision in Johnson v. United States and
its progeny. See Johnson v. United States 135 S.Ct.
2551 (2015) (striking down the residual clause of the Armed
Career Criminal Act as unconstitutionally vague). That motion
was referred to Magistrate Judge Patricia T. Morris for
report and recommendation. See ECF No. 29. On
November 2, 2016, before a decision was reached on Petitioner
Snow's first § 2255, Snow filed a second § 2255
arguing that his controlled substance offenses were not
qualifying predicate offenses within the meaning of the
Career Offender Guidelines in light of the Supreme
Court's decision in Mathis v. United States, 136
S.Ct. 2243 (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). Petitioner's
motion was construed as a motion to supplement his pending
§ 2255 and referred to the magistrate judge.
See ECF No. 43. The magistrate judge then granted
Petitioner's motion to supplement. See ECF No.
an initial report and recommendation was rejected, the
magistrate judge issued a new report on December 5, 2016.
See ECF No. 48. Petitioner filed objections on
December 28, 2016. See ECF No. 49.
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).
does not object to the magistrate judge's resolution of
his Johnson claim. However, he argues that the
magistrate judge erred in concluding that the Supreme
Court's decision in Mathis was inapplicable to
the controlled substance offenses giving rise to his career
offender status. As an initial matter, Snow's
Mathis claim may only be considered if it 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
(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). Snow's Mathis claim is
not timely under § 2255(f)(1), as it was raised over one
year after his judgment became final. Snow 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
Mathis set forth a new rule of constitutional law
made retroactive to cases on collateral review). United
States v. Taylor, No. 16-6223, 2016 WL 7093905, at *4
(10th Cir. Dec. 6, 2016) (collecting cases and concluding
that Mathis did not announce a new rule).
Fifth Circuit's decision in United States v.
Hinkle does not compel a different result. United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016). In
Hinkle, the Fifth Circuit Court of Appeals vacated a
defendant's sentence after finding that he was improperly
sentenced as a career offender under the guidelines.
Id. This conclusion was based upon a finding that,
pursuant to the Supreme Court's reasoning in
Mathis, a prior Texas conviction for delivery of
heroin did not qualify as a controlled substance offense
within the meaning of U.S.S.G. § 4B1.1(a).
Importantly, the court in Hinkle was applying
Mathis on direct appeal, not collateral attack.