United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris, Magistrate Judge
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART,
GRANTING RESPONDENT'S MOTION TO DISMISS, AND DENYING
PLAINTIFF'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C.
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
August 3, 2015, Petitioner John Derek Dugan was sentenced to
140 months of incarceration after pleading guilty to
possession of heroin with intent to distribute. ECF No. 22.
On December 19, 2017, Petitioner filed a motion to vacate his
sentence under 28 U.S.C. § 2255. ECF No. 22. That motion
was referred to Magistrate Judge Patricia T. Morris. ECF No.
25. On January 12, 2018, the Government filed a motion to
dismiss the petition to vacate the sentence. ECF No. 27. On
February 28, 2018, Judge Morris issued a report recommending
that the motion to dismiss be granted and the petition
dismissed. ECF No. 29.
case, Judge Morris concluded that Petitioner's motion to
vacate was untimely. She explained that Dugan's judgment
was entered on August 3, 2015. Dugan had fourteen days to
appeal, but chose not to. Accordingly, and pursuant to
Sanchez-Castellano v. United States, 358 F.3d 424,
428 (6th Cir. 2004) and United States v. Cottage,
307 F.3d 494, 499 (6th Cir. 2002), Dugan's conviction
became final on August 17, 2015. Pursuant to 28 U.S.C. §
2255(f)(1), there is a one year statute of limitations period
on § 2255 petitions which runs from the date on which
the judgment of conviction becomes final.
Morris concluded that “the motion to vacate should have
been filed by August 17, 2015 (14 days after judgment was
entered on August 3, 2015).” Rep. & Rec. at 5. That
is incorrect. August 17, 2015, was the date when Dugan's
conviction became final for § 2255 purposes. The
one-year statute of limitations began to run on that date.
Thus, the statute of limitations period for Dugan's
§ 2255 motion expired on August 17, 2016. Dugan's
petition was filed on December 19, 2017, and so it was
untimely under § 2255(f)(1).
Morris further considered other possible arguments that the
statute of limitations period had not expired. She correctly
concluded that the Supreme Court's decision in Mathis
v. United States, 136 S.Ct. 2243 (2016) did not create a
new, retroactively applicable right.
the calculation under § 2255(f)(1) was based on a
misapprehension of when the statute of limitations period
ended, the report and recommendation will be adopted only in
part. But because the error was non-determinative, because
Judge Morris correctly concluded that Dugan's petition
was untimely, and because no objections have been filed, the
petition will be dismissed.
the Magistrate Judge's report explicitly stated that the
parties to this action may object to and seek review of the
recommendation within fourteen days of service of the report,
neither Petitioner nor Respondent filed any objections. The
election not to file objections to the Magistrate Judge's
report releases the Court from its duty to independently
review the record. Thomas v. Arn, 474 U.S. 140, 149
(1985). The failure to file objections to the report and
recommendation waives any further right to appeal.
the petitioner may appeal this Court's dispositive
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 rejects a habeas claim on the
merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find
the district court's assessment of the constitutional
claim debatable or wrong. See Slack v. McDaniel, 529
U.S. 473, 484-85 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude
the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). In applying that standard, a district
court may not conduct a full merits review, but must limit
its examination to a threshold inquiry into the underlying
merit of the petitioner's claims. Id. at 336-37.
“The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. § 2254.
considered the matter, the Court concludes that the
petitioner has failed to make a substantial showing of the
denial of a constitutional right. 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 the magistrate
judge's report and recommendation, ECF No. 29, is
ADOPTED in part.
further ORDERED that the Government's
motion to dismiss, ECF No. 27, is GRANTED.
further ORDERED that Petitioner Dugan's
motion to vacate, ECF Nos. 22, is DENIED.
further ORDERED that a certificate of