Stamps v. USA
MEMORANDUM OPINION: Petitioner's motion to vacate, set-aside, or correct sentence under 28 U.S.C. § 2255 is DISMISSED. (Ordered by Judge Ed Kinkeade on 4/10/2018) (sss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
MARK KEVIN STAMPS,
UNITED STATES OF AMERICA,
Before the Court is Defendant Mark Kevin Stamps’ (“Defendant”) petition to
vacate, set-aside, or correct sentence under 28 U.S.C. § 2255. For the following reasons,
the petition is DISMISSED.
Petitioner pleaded guilty to transporting and shipping child pornography in
violation of 18 U.S.C. § 2252(A). On April 29, 2015, the Court sentenced him to 168
months in prison. He did not file an appeal.
On January 11, 2017, Petitioner filed the instant § 2255 petition. He argues he
is entitled to a sentence reduction under Amendment 801 of the United States
Sentencing Guidelines (“U.S.S.G.”), and that U.S.S.G. § 2G2.2(b) is unconstitutionally
Petitioner seeks a reduction of his sentence under Sentencing Guideline
Amendment 801, which became effective November 1, 2016.
amended the language in the child pornography guidelines at U.S.S.G. § 2G2.2(b)(3)
to “address differences among the circuits involving application of the tiered
distribution enhancements in § 2G2.2[.]”
The circuits have reached different
conclusions regarding the mental state required for application of the 2-level
enhancement for “generic” distribution as compared to the 5-level enhancement for
distribution not for pecuniary gain..” U.S. Sentencing Guidelines Manual, Suppl. to
App. C, Amendment 801 (U.S. Sentencing Comm’n 2016).
The motion to reduce sentence under Amendment 801is not cognizable under §
2255 and should have been filed as a motion under 18 U.S.C. § 3582(c). “Section 2255
motions may raise only constitutional errors and other injuries that could not have been
raised on direct appeal that will result in a miscarriage of justice if left unaddressed.
Misapplications of the Sentencing Guidelines fall into neither category and hence are not
cognizable in § 2255 motions.” United States v. Williamson, 183 F.3d 458, 462 (5th Cir.
1994) (internal citation omitted) (citing United States v. Segler, 37 F.3d 1131, 1134 (5th
Cir. 1994); United States v. Faubion, 19 F.3d 226, 233 (5th Cir. 1994).
Moreover, even if Petitioner had properly filed his motion under 18 U.S.C. §
3582(c), the motion is without merit. The Sentencing Commission did not make
Amendment 801 retroactive to convictions occurring prior to November 1, 2016. See
U.S.S.G. §1B1.10; United States v. Childs, __ Fed. Appx. __, 2018 WL 400737 (5th Cir.
Jan. 12, 2018) (stating district court was not authorized to reduce defendant’s sentence
under Amendment 801 because the Amendment was not listed as retroactively
applicable under U.S.S.G. § 1B1.10(d)). Petitioner was sentenced on April 29, 2015.
Amendment 801 therefore does not apply to his conviction.
Petitioner’s claims under § 2255 are also time-barred. The Antiterrorism and
Effective Death Penalty Act of 1996 establishes a one-year statute of limitations for
federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH
PENALTY ACT, Pub. L. 104-132, 110 Stat. 1214 (1996) ( "AEDPA"). The statute
provides that the limitations period shall run from the latest of:
the date on which the judgment of conviction becomes final;
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 Petitioner was prevented from filing by
such governmental action;
the date on which the right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review;
the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
See 28 U.S.C. § 2255(f).
In most cases, the limitations period begins to run when the judgment becomes
final. See 28 U.S.C. § 2255(f)(1). Petitioner’s conviction became final on May 13,
2015, when the time for filing an appeal expired. See Fed. R. App. P. 4(b)(1) (providing
fourteen days to file an appeal in criminal cases). Petitioner then had one year, or until
May 13, 2016, to file his § 2255 petition. Petitioner did not file his petition until
January 2, 2017. His petition is therefore untimely under § 2255(f)(1).
Petitioner’s claims are also untimely under § 2255(f)(3), which states the
limitations period runs from the date on which the right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review. Petitioner relies on the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which
invalidated the residual clause of the Armed Career Criminal Act (“ACCA”) as
unconstitutionally vague. Although Petitioner was not sentenced under the ACCA, he
argues that U.S.S.G. § 2G2.2(b) is likewise unconstitutionally vague.
Petitioner’s claim is foreclosed by the Supreme Court’s decision in Beckles v. United
States, ___ U.S. ___, 137 S.Ct. 886, 892 (2017). Beckles held that the sentencing
guidelines are not subject to a challenge for vagueness. The Court stated:
Unlike the ACCA, however, the advisory Guidelines do not fix the permissible
range of sentences. To the contrary, they merely guide the exercise of a court's
discretion in choosing an appropriate sentence within the statutory range.
Accordingly, the Guidelines are not subject to a vagueness challenge under the
Due Process Clause.
Id. Petitioner’s claims are therefore untimely under § 2255(f)(3).
Finally, Petitioner argues the petition is timely under § 2255(f)(4), which states
the limitations period runs from the date on which the facts supporting the claims
presented could have been discovered through the exercise of due diligence. Petitioner
argues the limitations period runs from date that Amendment 801 took effect, which he
states is the date he could have discovered his claims. Petitioner’s argument is without
merit. Amendment 801 does not retroactively apply to his conviction, and it therefore
cannot be a factual predicate for his claim. Petitioner has failed to establish that his
petition is timely under
The one-year statute of limitations is subject to equitable tolling in “rare and
exceptional cases.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir.1999) (asserting that courts must "examine each
case on its facts to determine whether it presents sufficiently 'rare and exceptional
circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth
Circuit has held that " '[e]quitable tolling applies principally where the plaintiff is
actively misled by the defendant about the cause of action or is prevented in some
extraordinary way from asserting his rights.' " Coleman v. Johnson, 184 F.3d 398, 402 (5th
Cir.1999) (quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir.1996)).
Movant bears the burden of proof to show he is entitled to equitable tolling. Phillips v.
Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Petitioner has failed to show he was actively misled about his habeas remedies or
that he was prevented in some extraordinary way from asserting his rights. He has failed
to show rare and exceptional circumstances justifying equitable tolling in this case.
Petitioner’s motion to vacate, set-aside, or correct sentence under 28 U.S.C. §
2255 is DISMISSED.
Signed April 10th, 2018.
UNITED STATES DISTRICT JUDGE
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