United States District Court, N.D. Oklahoma
OPINION AND ORDER
R Payne Judge
the Court are (1) Defendant Brian J. Thomas's
(“Defendant”) pro se motion under 28
U.S.C. § 2255 to vacate, set aside, or correct sentence
by a person in federal custody (Dkt. 28); (2) the
Government's motion to dismiss Defendant's §
2255 motion (Dkt. 32); and (3) Defendant's response to
the Government's motion to dismiss (Dkt. 33). Defendant
seeks relief pursuant to the United States Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). The Government opposes Defendant's
motion and urges the Court to dismiss the motion as untimely.
For the reasons cited herein, Defendant's motion pursuant
to § 2255 is DISMISSED and the
Government's motion to dismiss is
2015, Defendant pleaded guilty to arson, in violation of 18
U.S.C. § 844(i) (Count One). (See Dkt. 26
(Judgment & Commitment)). In advance of sentencing, the
United States Probation Office prepared a Presentence
Investigation Report (“PSR”) as to Defendant, in
which it was recommended he be classified as a career
offender under the United States Sentencing Guidelines
(“Guidelines”). (PSR ¶ 16). Defendant was
classified as a career offender because (1) the offense of
conviction in Count One (arson) was a felony crime of
violence and (2) he had prior convictions for two crimes of
violence. (PSR ¶ 16). Defendant's predicate career
offender convictions were (1) two counts of Arson First
Degree (Sequoyah County Case No. CF-1996-00221) and (2)
Feloniously Pointing Weapon (Tulsa County Case No.
CF-2003-2598). (PSR ¶ 16).
was sentenced on December 22, 2015. At sentencing, the Court
adopted the PSR without change. (Dkt. 25 (Minute Sheet -
Sentencing)). The Court sentenced Defendant to imprisonment
for 92 months on Count One. (Dkt. 26 (Judgment &
Commitment)). Defendant filed an Acknowledgment and Waiver of
Right to Appeal on December 30, 2015. Defendant did not
appeal his conviction or sentence, which became final on
January 6, 2016. He did not file a § 2255 motion or
other collateral challenge prior to the present proceeding.
April 13, 2017, Defendant filed a motion pursuant to 28
U.S.C. § 2255 to vacate, set aside or correct his
sentence. (Dkt. 28). Defendant raises three grounds in his
motion: (1) his feloniously pointing weapon conviction is no
longer a valid career offender predicate in light of
United States v. Johnson, 135 S.Ct. 2551 (2015); (2)
his attorney rendered ineffective assistance of counsel by
failing to appeal the use of his feloniously pointing weapon
conviction; and (3) his feloniously pointing weapon
conviction was not a violent crime under the Guidelines.
(Dkt. 28). Defendant asserts his motion is timely, because it
was filed within a year of the decision in Welch v.
United States, 136 S.Ct. 1257 (2016), which made
Johnson retroactive. The Government filed a motion
to dismiss Defendant's § 2255 motion, arguing it was
untimely filed. (Dkt. 32). Defendant filed a response to the
Government's motion, in which he reiterates his argument
that the feloniously pointing weapon conviction is an
improper career offender predicate. (Dkt. 33).
Johnson, the United States Supreme Court established
that the “residual clause” of the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (“ACCA”)
was unconstitutionally vague. 135 S.Ct. at 2557. The ACCA
provides a fifteen-year mandatory minimum sentence for a
person who is convicted as a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1), and has three prior
convictions for violent felonies or serious drug offenses. 18
U.S.C. § 924(e)(1). The now-defunct “residual
clause” of the ACCA defines a “violent
felony” to include an offense that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B)(ii). On April 18, 2016, the Supreme Court
clarified that its decision under Johnson applies
retroactively to cases on collateral review. Welch v.
United States, 136 S.Ct. 1257 (2016).
threshold matter, the Court must address the timeliness of
Defendant's § 2255 motion. Defendant claims his
motion is timely pursuant to § 2255(f)(3), which
requires a § 2255 motion to be filed within one year
from the date when the asserted right 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. Defendant states
the right asserted in his § 2255 motion was initially
recognized by the Supreme Court in Johnson, decided
on June 26, 2015, and the right was made retroactively
available in Welch on April 18, 2016. Defendant
contends his one-year limitations period began to run on the
date Welch made Johnson retroactive, on
April 18, 2016. (Dkt. 28, at 12).
misunderstands the appropriate limitations period under
§ 2255(f)(3). The relevant date for filing a timely
§ 2255 motion pursuant to Johnson was the date
Johnson itself was decided, June 26, 2015. One year
after that date, calculated in light of Fed.R.Civ.P.
6(a)(1)(C), was June 27, 2016.Under this rule, Defendant's
§ 2255 motion, filed on April 13, 2017, is more than
nine months overdue. Although Welch made the right
newly recognized in Johnson retroactive, the date
Welch was decided is not pertinent to timeliness of
a § 2255(f)(3) motion asserting that new right. See
Dodd v. United States, 545 U.S. 353 (2005) (one-year
statute of limitations under § 2255(f)(3) runs from the
date the Supreme Court initially recognized a new
constitutional right, rather than the date the new right was
made retroactive to cases on collateral review). Accordingly,
Defendant's claims pursuant to Johnson are
untimely under § 2255(f)(3).
Defendant's motion is untimely pursuant to §
2255(f)(1), which requires the motion to be filed within one
year from the date on which the judgment of conviction
becomes final. Defendant did not appeal his conviction or
sentence; therefore, his conviction became final on January
6, 2016, which is 14 days after the entry of judgment in his
case. See Fed. R. App. P. 4(b). Defendant had until
January 6, 2017, to file a timely motion under §
2255(f)(1). However, Defendant filed this § 2255 motion
on April 13, 2017, more than three months past that deadline.
Therefore, to the extent Defendant's motion raises issues
beyond those covered in Johnson, Defendant's
motion is still untimely and this Court lacks authority to
consider the merits of any of Defendant's
as the Government points out, to the extent Defendant's
motion can be read as raising a claim under Mathis v.
United States, 136 S.Ct. 2243 (2016), his motion must
still be dismissed as untimely. Mathis did not
announce a new rule under § 2255(f)(3), and it does not
have retroactive application to cases on collateral review.
See United States v. Taylor, 672 Fed.Appx. 860, 864
(10th Cir. 2016).
Defendant's motion is untimely, the Court lacks
jurisdiction to reach the merits of the claims presented in
Defendant's motion. Accordingly, the Government's
motion to dismiss is granted, and Defendant's § 2255
motion is dismissed for lack of jurisdiction.