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United States v. Snow

United States District Court, E.D. Michigan, Northern Division

April 24, 2017




         On 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.

         On 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. 44.

         After 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.


         Pursuant 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).

         Snow 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 latest of

(1) the date on which the judgment of conviction becomes final;
(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 governmental action;
(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.

         “[A] 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).

         The 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. ...

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