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Rembert v. United States

United States District Court, D. Maine

May 3, 2019

WILLIE REMBERT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 87.) The Government asks the Court to dismiss the matter. (Response, ECF No. 93.)

         Following a review of Petitioner's section 2255 motion, the Government's response, and the record, I recommend the Court dismiss the motion.

         I. Factual Background and Procedural History

         Following a guilty plea, Petitioner was convicted in 2013 of possession with intent to distribute cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(C); on November 20, 2013, the Court sentenced Petitioner to a term of 132 months in prison, to be served concurrently with a 51-month revocation sentence.[1] (Judgment, ECF No. 72 at 1-2.) Petitioner did not appeal from the Court's judgment.

         On May 20, 2016, counsel filed Petitioner's first section 2255 motion to challenge the judgment; the motion contained a request for relief under Johnson v. United States, ____ U.S. ___, 135 S.Ct. 2551 (2015) (holding the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), i.e., section 924(e)(2)(B), is unconstitutionally vague). (Motion, ECF No. 76.) The Court ordered the Government to answer (Order, ECF No. 77), and the Government filed a motion to stay pending the Supreme Court's decision in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886, 890 (2017) (holding “the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause”). (Motion, ECF No. 79.)

         After the Supreme Court decided Beckles, Petitioner authorized counsel to move to withdraw the section 2255 motion and dismiss it without prejudice. (Motion, ECF No. 81.) In May 2017, the Court granted the motion to withdraw and dismissed the petition without prejudice. (Order, ECF No. 84.) The Court noted that it “express[ed] no view on what impact, if any, this circumstance will have on any future claim the petitioner might make but, through the government's response, the petitioner has the benefit of the latter's view on the subject.” (Id.)

         Petitioner filed the pending section 2255 motion in October 2018. (Motion, ECF No. 87.) Petitioner challenges the prior vacated robbery conviction, based in part on United States v. Mulkern, 854 F.3d 87 (1st Cir. 2017) (holding that a Maine robbery conviction, 17-A M.R.S. § 651(1)(B), (C), is not a “violent felony” for purposes of the ACCA's “force clause, ” 18 U.S.C. § 924(e)(2)(B)(i)); Petitioner also asserts a related claim of ineffective assistance. (Motion at 4-5; Reply, ECF No. 94; Reply to Amended Response, ECF No. 95.)

         The Government contends, among other arguments, that Petitioner's pending section 2255 motion is untimely. (Amended Response, ECF No. 93.)

         II. Discussion

A 1-year period of limitation shall apply to a motion under this section. The 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 ...

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