United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION TO VACATE SENTENCE AS UNTIMELY
AND DENYING MOTION SUPPLEMENTING HIS MOTION TO VACATE AS
MOOT, DENYING CERTIFICATE OF APPEALABILITY AND LEAVE TO
APPEAL IN FORMA PAUPERIS
L. LUDINGTON United States District Judge.
February 12, 2013, Petitioner Demarcus Jammal Goss was
sentenced to 84 months after pleading guilty to being a felon
in possession of a firearm. ECF No. 26. He did not appeal. On
July 17, 2017, Goss filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. ECF No. 51. Goss had
previously filed two other motions to vacate, see
ECF Nos. 27, 35, but both were voluntarily withdrawn by Goss
prior to a decision on the merits. See ECF No. 44,
49. On July 26, 2017, the Court issued an order concluding
that Goss's third motion to vacate was not a second or
successive motion, but directing him to explain why his
motion was timely under § 2255(f). ECF No. 53. Goss was
directed to respond by August 14, 2017. On August 18, 2017,
Goss filed a motion seeking an extension of time to respond,
which was granted. ECF Nos. 54, 55.
August 28, 2017, Goss filed an “Explanation” of
his § 2255 motion to vacate. ECF No. 56. Goss explains
that “Petitioner now files his motion in light of the
United States decision in Mathis and the Sixth Circuit's
decision in Ritchey and other controlling decisions.”
Id. at 1.
explained in the Court's July 25, 2017, order, 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.
Id. at (f)(1)-(4).
Goss appears to be arguing that Mathis v. United
States, 136 S.Ct. 2243 195 L.Ed.2d 604 (2016)
articulated a new right that was made retroactively
applicable to cases on collateral review. In Mathis,
the Supreme Court gave no indication that it was articulating
a new right, much less that any new right was retroactive. To
the contrary, the Mathis Court appeared to view its
decision as a “straightforward” application of
precedent. See Id. at 2257 (“Our precedents
make this a straightforward case. For more than 25 years, we
have repeatedly made clear that application of ACCA involves,
and involves only, comparing elements.”). See
also Proctor v. United States, No.
5:11-CR-00030-TBR, 2017 WL 2802174, at *2 (W.D. Ky. June 28,
2017) (“The Supreme Court's decision in
Mathis did not create a new rule of law which
applies retroactively to cases on collateral review.”).
other words, Goss's motion to vacate his sentence is
untimely under § 2255(f)(3). Goss does not assert that
his motion is timely on any other basis. Thus, Goss's
motion to vacate his sentence will be denied as untimely and
his “Motion of Explanation” will be denied as
Petitioner may appeal the Court's decision, a certificate
of appealability must be issued. See 28 U.S.C.
§ 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may be issued “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a court
denies relief on the merits, the substantial showing
threshold is met if the petitioner demonstrates that
reasonable jurists would find the court's assessment of
the constitutional claim debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). When a court
denies relief on procedural grounds without addressing the
merits, a certificate of appealability should be issued if it
is shown that jurists of reason would find it debatable
whether the petitioner states a valid claim of the denial of
a constitutional right and that jurists of reason would find
it debatable whether the court was correct in its procedural
considered the matter, the Court concludes that reasonable
jurists would not dispute whether Petitioner's motion to
vacate was time-barred. Accordingly, a certificate of
appealability is not warranted in this case. The Court
further concludes that Petitioner should not be granted leave
to proceed in forma pauperis on appeal, as any
appeal would be frivolous. See Fed. R. App. P.
it is ORDERED that Petitioner Goss's
motion to vacate his sentence, ECF ...