United States District Court, S.D. Georgia, Statesboro Division
REPORT AND RECOMMENDATION
convicted of possession of a firearm as a career criminal,
subject to an armed career criminal enhancement, Grady Hill
was sentenced to 206 months' imprisonment in June 2009.
Docs. 29 & 30. He took no appeal and filed no motion to
vacate his sentence, but did seek --and was granted -- a
reduction of his sentence. Docs. 31 & 32 (reducing his
sentence to 180 months pursuant to Rule 35 and 18 U.S.C.
§ 3553(e)). Now, eight years later, and well outside the
one-year statute of limitations to file a 28 U.S.C. §
2255 motion to vacate or alter his sentence, Hill has filed a
“Rule 60(b)(6) motion . . . based on a new theory of
why the [armed career criminal] enhancement should not
apply.” Doc. 33 at 1.
was warned that “[a]n attack on this Court's
substantive ‘previous resolution of a claim on the
merits'” would be construed as a 28 U.S.C. §
2255 motion to vacate his sentence and given leave to amend
or withdraw his motion. Doc. 33 at 1-2 (giving warning
pursuant to Castro v. United States, 540 U.S. 375,
383 (2005)). He has not responded, so the Court screens his
motion under Rule 4 of the Rules Governing Section 2255
Court entered judgment against movant on June 29, 2009, doc.
30, and Hill had one year from the date his conviction became
final to seek § 2255 relief. 28 U.S.C. § 2255(f).
He had until June 29, 2010, to file his notice of appeal.
Fed. R. App. P. 4(b)(1)(A)(i) (defendants must notice their
appeals within 14 days from the entry of judgment). Since he
filed no appeal, Hill's conviction became final and
§ 2255(f)'s one-year clock began to tick on June 29,
2010. He did not file the present § 2255
motion, however, until June 22, 2017, which is 7 years too
late. Doc. 33. Hill offers no explanation for the
delay. Hence, his motion is time-barred unless he
can show an exception, like a new rule of law retroactively
available to him. See 28 U.S.C. § 2255(f).
argues that his motion is timely because, pursuant to the
Supreme Court's recent holdings invalidating the residual
clause of the Armed Career Criminal Act (ACCA), his
ACCA-enhanced sentence is invalid because his predicate
offenses (possession with the intent to distribute cocaine)
“do[ ] not match the federal generic definition based
on Taylor v. U.S. 495.” Doc. 33 at 2. But the only
retroactive Supreme Court case affecting an ACCA
enhancement is Johnson v. United States, 135 S.Ct.
2551 (2015). See Welch v. United States, 136 S.Ct.
1257 (2016) (holding Johnson retroactive). And any
postconviction challenge based on that retroactive rule had
to be made within one year of the ruling. See 28
U.S.C. §§ 2244(d)(1); 2255(f)(3). Hill's motion
was not signature-filed until June 13, 2017 (doc. 33 at 4) --
two years after the Johnson decision was published
(on June 26, 2015). Because he cannot use the limitations
period found at § 2255(f)(3), Hill's motion remains
Hill's § 2255 motion should be
DENIED. Applying the Certificate of
Appealability (COA) standards set forth in Brown v.
United States, 2009 WL 307872 at * 1-2 (S.D.
Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at
this stage of the litigation, so no COA should issue either.
28 U.S.C. § 2253(c)(1); Rule 11(a) of the Rules
Governing Habeas Corpus Cases Under 28 U.S.C. § 2254
(“The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant”) (emphasis added).
REPORTED AND RECOMMENDED.
 As described in the statute, the
one-year limitation period runs from the latest of:
(1) the date on which the judgment of conviction
(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