Jordan v. United States of America

Filing 2

ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action 08-cr-10-LRR) filed by Melvin Jordan, III. A certificate of appealability will not issue. Signed by Chief Judge Linda R Reade on 4/1/14. (ksy)(copy w/ NEF to Plf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

MELVIN JORDAN, III,
Movant,

No. C14-0035-LRR
No. CR08-0010-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

____________________________
This matter appears before the court on Melvin Jordan, III’s motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). Melvin
Jordan, III (“the movant”) filed such motion on March 12, 2014. Because judgment
entered against the movant on September 4, 2008 and the movant never filed a direct
appeal, any action attacking his conviction or sentence is barred by the one-year statute of
limitation. The movant’s conviction became final in September of 2008 and he only sought
relief in March of 2014, which is well beyond the applicable time frame. See 28 U.S.C.
§ 2255(f)(1). Further, no other subsection under 28 U.S.C. § 2255(f) applies to the
movant’s situation. The movant is not able to rely on Descamps v. United States, ___
U.S. ___, 133 S. Ct. 2276 (2013), because the Supreme Court has not made it retroactive
to cases on collateral review. See Tyler v. Cain, 533 U.S. 656, 663 (2001) (“[A] new rule
is not made retroactive to cases on collateral review unless the Supreme Court holds it to
be retroactive.”). The movant cites to no case in which the Supreme Court has declared
its decision in Descamps to be retroactively applicable on collateral review and the court’s
own search has not revealed any cases that have applied Descamps retroactively to a case
on collateral review. Cf. United States v. Hairston, 2014 U.S. Dist. LEXIS 38683 (W.D.

Va. 2014); United States v. Davis, 2014 U.S. Dist. LEXIS 34879 (N.D. Ill 2014); Hunter
v. United States, 2014 U.S. Dist. LEXIS 28755 (E.D. Okla. 2014); Wilson v. Holland,
2014 U.S. Dist. LEXIS 16277 (E.D. Ky. 2014); Hoskins v. Coakley, 2014 U.S. Dist.
LEXIS 7671 (N.D. Ohio 2014); United States v. Copeland, 2014 U.S. Dist. LEXIS 1921
(N.D. Okla. 2014); Monroe v. United States, 2013 U.S. Dist. LEXIS 168904 (N.D. Tex.
2013); Baldwin v. United States, 2013 U.S. Dist. LEXIS 167124 (D. Md. 2013);
Strickland v. English, 2013 U.S. Dist. LEXIS 119371 (N.D. Fla 2013). Based on the
foregoing, the movant’s motion to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255 is denied.1 A certificate of appealability under 28 U.S.C. § 2253 will not
issue.
IT IS SO ORDERED.
DATED this 1st day of April, 2014.

1

Having concluded that the movant’s action is untimely, the court declines to
address whether Iowa’s burglary statute, Iowa Code section 713.5, is indivisible for
purposes of the Armed Career Criminal Act and whether Iowa’s charging statute, Iowa
Code section 713.1, goes beyond the generic definition of burglary.
2