United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
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.)
a review of Petitioner's section 2255 motion, the
Government's response, and the record, I recommend the
Court dismiss the motion.
Factual Background and Procedural History
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. (Judgment, ECF No. 72 at 1-2.) Petitioner
did not appeal from the Court's judgment.
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
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.)
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.)
Government contends, among other arguments, that
Petitioner's pending section 2255 motion is untimely.
(Amended Response, ECF No. 93.)
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(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