United States District Court, N.D. Georgia, Atlanta Division
RICHARD LUCAS, JR. Movant,
UNITED STATES OF AMERICA, Respondent. Criminal No. 1:13-CR-0114-WSD-JFK-1
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
F. KING UNITED STATES MAGISTRATE JUDGE
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 , Respondent's
motion to dismiss  the motion as untimely, and
Movant's response  to the motion to dismiss.
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
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).
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. (Mov't Resp. at 3, ECF No. 48).
Otherwise, Movant's response does not add significantly
to his prior pleadings.
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
(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
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).
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 ...