Spells v. USA

Filing 6

MEMORANDUM AND ORDER: Petitioner Ronnie Spells, proceeding pro se, moves for reconsideration of this Court's July 30, 2014 Memorandum and Order denying as untimely his petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the motion is denied. Accordingly, Spells cannot avail himself of the actual innocence tolling exception to the one-year limitations period in section 2255(f). For the foregoing reasons, Spell's motion is DENIED. SO ORDERED. (Signed by Judge P. Kevin Castel on 10/24/2014) (ama) Modified on 10/29/2014 (ama).

Petitions made under section 2255 are subject to a one-year statute of limitations,
which generally begins to run on “the date on which the judgment of conviction became final.”
28 U.S.C. § 2255(f)(1). Because Spells’s conviction became final on August 4, 2008, his
petition, which was filed on May 6, 2014, would be untimely under this rule. Where applicable,
however, the limitations period begins to run on “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.” 28 U.S.C. §
2255(f)(3). Spells argues that Descamps v. United States, 133 S. Ct. 2276 (2013), created such a
right that applies to his petition.
In its previous opinion, the Court held that Descamps does not apply retroactively.
Although the Second Circuit has not spoken on this issue, all the circuit courts to have
considered the question agree that circuit and district courts can decide a rule’s retroactivity
when reviewing an initial petition under section 2255. See United States v. Thomas, 627 F.3d
534, 536–37 (4th Cir. 2010) (collecting cases). A rule applies retroactively only if it is a
substantive rule that “alters the range of conduct or the class of persons that the law punishes,”
Schriro v. Summerlin, 542 U.S. 348, 353 (2004), or if it is one of a “small set” of “watershed”
procedural rules “implicating the fundamental fairness and accuracy of the criminal proceeding.”
Id. at 352 (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)). The courts reaching the issue are
in agreement that the rule of Descamps is neither of these. See Putzier v. United States, 2014
WL 5149218, at *3 (N.D. Iowa Oct. 14, 2014) (collecting cases). Neither of the two cases on
which Spells relies is to the contrary. In United States v. Isidoro, 2013 WL 5353001 (S.D. Cal.
Sept. 23, 2013), the government conceded the retroactivity of Descamps. In Lowe v. United
States, 2014 WL 435351 (E.D. Wis. Feb. 4, 2014), the court held that, even if Descamps applied

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retroactively, it did not announce a “new” rule in the Seventh Circuit, and thus the petitioner
could have made a Descamps-type argument on direct appeal. This Court sees no reason to
depart from this overwhelming consensus.
Spells next argues that the limitations period should be tolled because he is
“actually innocent” of being a career offender, a classification that resulted in the enhancement
of his sentence. In McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013), the Supreme Court held
that “actual innocence,” a circumstance that enables habeas petitioners to overcome procedural
bars to consideration of the merits of their constitutional claims, also allows them to bypass
federal habeas petitions’ one-year limitations period. The actual innocence exception applies to
the sentencing phase of noncapital cases. Spence v. Superintendent, 219 F.3d 162, 171 (2d Cir.
2000). In that context, however, “actual innocence” means “actual[] innocen[ce] of the act on
which [the petitioner’s] harsher sentence was based.” Id. at 172 (emphasis added).
Spells does not argue that he did not commit the acts resulting in the prior
convictions that led to his classification as a career offender. Rather, he argues that the
sentencing court erroneously considered his two prior youthful offender adjudications to qualify
as adult felony convictions for the purposes of the career offender classification. In Poindexter
v. Nash, 333 F.3d 372, 381–82 (2d Cir. 2003), the Second Circuit rejected the similar argument
of a section 2255 petitioner who challenged his career offender classification, claiming that,
because he was convicted of three felonies on the same day, those prior convictions should be
treated as a single conviction. The court concluded that this type of claim was “not cognizable as
a claim of actual innocence.” Id. at 382. Spells has suggested no way to distinguish his claim
from the claim at issue in Poindexter. Moreover, the two cases on which he relies, Voelker v.
Craig, 2006 WL 721610 (N.D.N.Y. Mar. 21, 2006), and Wongus v. Craig, 2006 WL 2862219

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