Opinion and Order — United States v. Brian J. Thomas, No. 15-CR-124-JHP (Dkt. 35, N.D. Okla.)

Summary

An opinion and order in United States v. Brian J. Thomas, Case No. 15-CR-124-JHP, in the U.S. District Court for the Northern District of Oklahoma, filed as Dkt. 35. It rules on Thomas's pro se motion under 28 U.S.C. § 2255 (Dkt. 28), filed April 13, 2017, which relied on Johnson v. United States to challenge the career offender classification behind a 92-month sentence for arson under 18 U.S.C. § 844(i). The court holds that the one-year period under § 2255(f)(3) ran from June 26, 2015, the date Johnson was decided, not from Welch v. United States, and ended June 27, 2016, and that the motion was also late under § 2255(f)(1) because the conviction became final on January 6, 2016. The motion is dismissed for lack of jurisdiction, the government's motion to dismiss (Dkt. 32) is granted, and no evidentiary hearing or certificate of appealability issues.

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              IN THE UNITED STATES DISTRICT COURT
            FOR THE NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )
                          )
          Plaintiff,      )
                          )
v.                        )                        Case No. 15-CR-124-JHP
                          )
BRIAN J. THOMAS,          )
                          )
          Defendant.      )

                            OPINION AND ORDER

      Before 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 GRANTED.

                                BACKGROUND

      In 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


                                        1
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).

      Defendant 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.

      On 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

                                         2
(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).

                                  DISCUSSION

      In 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

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clarified that its decision under Johnson applies retroactively to cases on collateral

review. Welch v. United States, 136 S. Ct. 1257 (2016).

       As a 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).

       Defendant 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, 2016.1

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


1
  The one-year period expired on June 26, 2016, which was a Sunday. Under Federal Rule of
Civil Procedure 6(a)(1)(C), if the deadline falls on a Sunday, the period continues to run until the
following day that is not a legal holiday.
                                                 4
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).

       Moreover, 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 claims.2

       Finally, 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),

2
 Defendant does not argue for timeliness under §§ 2255(f)(2) or (f)(4), and the Court identifies
no possible relevance of these limitations periods to Defendant’s motion.
                                               5
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 F. App’x 860, 864 (10th Cir.

2016).

      Because 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.

                            EVIDENTIARY HEARING

      This Court is required by § 2255 to hold an evidentiary hearing “[u]nless the

motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief.” 28 U.S.C. § 2255(b). See also United States v. Marr, 856

F.2d 1471, 1472 (10th Cir. 1988). With this standard as a guide, the Court has

thoroughly reviewed the pleadings, files, and record in this case, and from that

review, the Court finds the record conclusively shows that Defendant is entitled to

no relief on his claims and an evidentiary hearing is unnecessary.

                     CERTIFICATE OF APPEALABILITY

      Rule 11 of the Rules Governing Section 2255 Proceedings instructs that

“[t]he district court must issue or deny a certificate of appealability when it enters a

final order adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the court may

                                           6
issue a certificate of appealability “only if the applicant has made a substantial

showing of the denial of a constitutional right,” and the court “indicate[s] which

specific issue or issues satisfy [that] showing.”     A petitioner can satisfy that

standard by demonstrating that the issues raised are debatable among jurists, that a

court could resolve the issues differently, or that the questions deserve further

proceedings. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (citing Barefoot v.

Estelle, 463 U.S. 880, 893 & n.4 (1983)). After considering the record in this case,

the Court concludes a certificate of appealability should not issue, as Defendant

has not made a substantial showing of the denial of a constitutional right. The

record is devoid of any authority suggesting that the Tenth Circuit Court of

Appeals would resolve the issues in this case differently.

                                  CONCLUSION

      For the foregoing reasons, Defendant Brian J. Thomas’s motion under 28

U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal

custody (Dkt. 28) is DISMISSED FOR LACK OF JURISDICTION.                        The

Government’s motion to dismiss (Dkt. 32) is GRANTED.




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