Brooks v. United States of America
MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that this action is DISMISSED. A separate Order of Dismissal will be filed forthwith. Signed by District Judge Catherine D. Perry on 12/09/2013. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:13CV2099 CDP
MEMORANDUM AND ORDER
Rule 4 of the Rules Governing § 2255 Proceedings requires that I review a
motion to vacate when it is filed and to dismiss if movant is not entitled to relief.
When the instant motion was filed, I determined that it appeared to be time-barred,
and I ordered movant to show cause why it should not be dismissed. Movant has
failed to offer any plausible reason why this action should not be summarily
dismissed. Therefore, I will dismiss this action without further proceedings.
Movant pled guilty to possession with the intent to distribute crack cocaine.
He qualified as a career offender, so his guidelines range was calculated under
§ 4B1.1(b) of the Sentencing Guidelines. His guidelines range was 262-327 months.
I determined that the low end of that sentencing range was greater than necessary to
comply with the purposes set out in 18 U.S.C. § 3553(a), and on December 7, 2006,
I sentenced him to 204 months’ imprisonment. This sentence was in the middle of
the guidelines range under which he would have qualified for the drug offense had
he not been a career offender. Movant did not appeal or file a timely § 2255 motion.
In the instant motion, movant argues that his counsel was ineffective for
allowing him to plead guilty when his punishment range was unknown because his
criminal history had not been calculated. Movant argues that he is entitled to relief
under the Supreme Court of the United States’ recent ruling in Alleyne v. United
States, 133 S. Ct. 2151 (2013), in which the Court held that any fact that increases the
mandatory minimum sentence for a crime is an “element” of the criminal offense that
must be proven beyond a reasonable doubt by submission to the jury. Id. at 2155.
The Court resolved Alleyne on direct, rather than collateral review, and it did not
declare that its new rule applied retroactively on collateral attack.
Under 28 U.S.C. § 2255:
A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run 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).
Movant asserts that his motion is timely under § 2255(f)(3) in that the
limitations period began to run on June 17, 2013, the date on which the Court issued
its decision in Alleyne.
Nothing in Alleyne may be interpreted to suggest that the Court intended it to
be applied retroactively. In fact, Alleyne is an extension of Apprendi v. New Jersey,
530 U.S. 466 (2000), and the Court has already decided that other procedural rules
based on Apprendi do not apply retroactively, which strongly implies that they will
not declare that Alleyne should be applied retroactively either. See Schriro v.
Summerlin, 542 U.S. 348, 353 (2004) (holding that Ring v. Arizona, 536 U.S. 584
(2002), was properly classed as procedural, rather than substantive). As a result, the
Court’s decision in Alleyne did not revive the limitations period.
Seeking to avoid dismissal, movant argues that the district court can declare
Alleyne to be retroactive. Under § 2255(f)(3), however, only the Supreme Court can
declare case law to be retroactive. So, this argument fails.
An unappealed criminal judgment becomes final for purposes of calculating the
time limit for filing a motion under § 2255 when the time for filing a direct appeal
expires. Moshier v. United States, 402 F.3d 116, 118 (2nd Cir. 2005). In this case,
the judgment became final on or about December 21, 2006. Fed. R. App. P. 4(b)(1);
Fed. R. App. P. 26(a). As a result, the one-year period of limitations under § 2255
expired in December 2007.
IT IS HEREBY ORDERED that this action is DISMISSED.
A separate Order of Dismissal will be filed forthwith.
Dated this 9th day of December, 2013.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
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