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Lucas v. United States

United States District Court, N.D. Georgia, Atlanta Division

February 15, 2018

RICHARD LUCAS, JR. Movant,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 1:13-CR-0114-WSD-JFK-1

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          JANET F. KING UNITED STATES MAGISTRATE JUDGE

         Movant has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence entered in this Court under the above criminal docket number. The matter is before the Court on the motion to vacate [42], Respondent's motion to dismiss [45] the motion as untimely, and Movant's response [48] to the motion to dismiss.

         I. Background

         By judgment entered on April 9, 2014, the Court imposed on Movant a total 135-month term of imprisonment. (J., ECF No. 41). The record does not show that Movant filed a direct appeal.

         On June 17, 2017, Movant submitted his § 2255 motion for filing. (Mot. to Vacate at 14, ECF No. 42). Therein, Movant asserts (1) that under Mathis v. United States, U.S., 136 S.Ct. 2243 (2016); Johnson v. United States, U.S., 135 S.Ct. 2551 (2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, U.S., 137 S.Ct. 31 (2016); and United States v. Dean, 169 F.Supp.3d 1097 (D. Or. 2016), his prior Georgia convictions no longer qualify as predicates for sentencing purposes and (2) that his motion is timely under § 2255(f)(3). (Mot. to Vacate at 5, 13; Mov't Mem. at 1-2, ECF No. 42-1).[1]

         Respondent argues, inter alia, that this action should be dismissed as untimely because it was not filed within one year of Johnson and because Mathis, Dimaya, and Dean do not restart the federal one year limitations period under § 2255(f)(3). (Mot. to Dismiss at 5-6, ECF No. 45). In response, Movant appears to argue that his motion is timely under Mathis, which he asserts is a substantive ruling that should apply retroactively, and also states that the Court should stay this action until the United States Supreme Court resolves Dimaya.[2] (Mov't Resp. at 3, ECF No. 48). Otherwise, Movant's response does not add significantly to his prior pleadings.

         II. Discussion

         Under the Antiterrorism and Effective Death Penalty Act's (“AEDPA”), a one-year statute of limitations applies to § 2255 motions. Beeman v. United States, 871 F.3d 1215, 1219 (11th Cir. 2017). The one-year statute of limitations runs 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 applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

         The one-year statute of limitations is subject to equitable tolling if the movant shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Thomas v. Attorney Gen., Fla., 795 F.3d 1286, 1291 (11th Cir. 2015) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)) (internal quotation marks omitted). In addition, under the fundamental miscarriage of justice standard, actual innocence provides an exception to the limitations period, “but only when the petitioner presents new evidence that ‘shows it is more likely than not that no reasonable juror would ...


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