United States District Court, E.D. Michigan, Southern Division
ORDER OVERRULING PETITIONER'S OBJECTIONS (Doc.
82) AND ADOPTING REPORT AND RECOMMENDATION (Doc. 74) AND
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A
CERTIFICATE OF APPEALABILITY
AVERN COHN, UNITED STATES DISTRICT JUDGE
a case under 28 U.S.C. § 2255. Petitioner Maurice
Gholston (Petitioner), proceeding pro se, plead
guilty under a Rule 11 agreement. He was sentenced to 24
months imprisonment for violation of 18 U.S.C. § 1951(a)
- Interference With Commerce by Robbery and 24 months
imprisonment violation of 18 U.S.C. § 924© - Use of
a Firearm During the Commission of a Violent Act, to run
consecutively. Petitioner did not file a direct appeal.
Instead, he filed a motion under 28 U.S.C.§ 2255. His
sole ground for relief is that this sentence violates the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (June 26, 2015). He requested
that the Court vacate his 48 month sentence and resentence
him to 24 months. The government says that the motion is
untimely and lacks merit.
motion was referred to a magistrate judge (Doc. 69). The
magistrate judge issued a report and recommendation (MJRR),
recommending that the motion be denied for lack of merit and
that the Court decline to rule on whether the petition was
timely filed. (Doc. 74).
the Court are Petitioner's objections to the
MJRR. (Doc. 82). For the reasons that follow,
the objections will be overruled, the MJRR will be adopted,
and the petition will be dismissed for lack of merit. The
Court will also deny a certificate of appealability.
district court must conduct a de novo review of the
parts of a magistrate judge's report and recommendation
to which a party objects. 28 U.S.C. § 636(b)(1). The
district “court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate” judge. Id. The requirement of
de novo review “is a statutory recognition
that Article III of the United States Constitution mandates
that the judicial power of the United States be vested in
judges with life tenure.” United States v.
Shami, 754 F.2d 670, 672 (6th Cir. 1985). Accordingly,
Congress enacted 28 U.S.C. § 636(b)(1) to
“insure that the district judge would be the final
arbiter” of a matter referred to a magistrate judge.
Flournoy v. Marshall, 842 F.2d 875, 878 (6th Cir.
objections, Petitioner admits that the petition was not
timely filed and asks that it be dismissed as such.
Petitioner suggests that a dismissal on a procedural ground,
such as the statute of limitations, better preserves his
right to collateral review in the future. To the extent
Petitioner believes that a dismissal based on the statute of
limitations protects against application of the successive
petition requirements, he is mistaken. A dismissal based on
the statute of limitations is a decision on the merits,
rendering a subsequent petition second or successive. See
Murray v. Greiner, 394 F.3d 78, 81 (2d Cir.2005)
(“We hold that dismissal of a § 2254 petition for
failure to comply with the one-year statute of limitations
constitutes an adjudication on the merits that renders future
petitions under § 2254 challenging the same conviction
‘second or successive' petitions under §
2244(b).”); Altman v. Benik, 337 F.3d 764 (7th
Cir.2003) (prior untimely federal habeas corpus petition
counts as “prior application” for purposes of
limitations on second or successive petitions). Thus, a
dismissal on the grounds that the petition is untimely still
subjects Petitioner to the requirements for filing a
of the statute of limitations, Petitioner also addresses the
merits of his claim, contending that the magistrate judge
erred in finding that he is not entitled to relief.
Petitioner's objections essentially repeat the arguments
considered and rejected by the magistrate judge. The
magistrate judge fully explained why the Supreme Court's
decision in Johnson has no effect on
Petitioner's sentence for violation of 18 U.S.C.§
924(c) or whether a Hobbs Act robbery conviction is a crime
of violence. Nothing in Petitioner's objections convince
the Court that the magistrate judge erred in his analysis.
for the reasons stated above, Petitioner's objections are
OVERRULED. The MJRR is ADOPTED as the findings and
conclusions of the Court. Petitioner's motion under 28
U.S.C. § 2255 is DENIED. Finally, because reasonable
jurists would not debate whether Petitioner is entitled to
relief on his claim, a certificate of appealability is also
DENIED. See 28 U.S.C. § 2253(c); Fed. R. App.