Hatcher v. United States of America
MEMORANDUM OPINION AND ORDER: the Court WITHDRAWS the reference to the United States Magistrate Judge; GRANTS Petitioner's 70 MOTION to Voluntarily Dismiss and the 49 2255 Petition and its 55 supplement are DISMISSED WITHOUT PREJUDICE; DIRECTS the Clerk to remove Civil Action 5:16-cv-5683 from the Court's active docket; the 71 MOTION to Appoint Counsel is DENIED. Signed by Judge Thomas E. Johnston on 10/05/2017. (cc: attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 5:16-cv-05683
(Criminal No. 5:08-cr-00189)
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Pending before the Court is Petitioner’s Motion to Voluntarily Dismiss § 2255 Motion,
filed March 29, 2017. (ECF No. 70.) Also pending in the above-styled criminal matter is
Petitioner’s letter-form Motion to Appoint Counsel. (ECF No. 71.) For the reasons that follow,
the Court WITHDRAWS the reference to the United States Magistrate Judge. The Motion to
Voluntarily Dismiss is GRANTED. The pro se Motion to Appoint Counsel is DENIED.
On January 22, 2009, Petitioner pled guilty to one count of distribution of cocaine in
violation of 21 U.S.C. § 841(a)(1). (Criminal Action No. 5:08-cr-00189, ECF No. 24.) At final
disposition, Petitioner was classified as a career offender based on two prior convictions for
wanton endangerment. The Court sentenced Petitioner to a term of 155 months of imprisonment
followed by a three-year term of supervised release. (Id., ECF Nos. 31, 32.) Petitioner did not
On June 23, 2016, Petitioner, acting through counsel, filed an Emergency Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (the § 2255 Petition).1 (ECF No.
49.) Counsel argued that Petitioner was entitled to relief based upon the United States Supreme
Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The matter was referred to
United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a
recommendation for disposition. On August 3, 2016, counsel filed a Supplemental Motion to
Correct Sentence under 28 U.S.C. § 2255. On August 22, 2016, the United States filed a motion
to withdraw the reference and stay the § 2255 Petition until the Supreme Court issued its
anticipated decision in Beckles v. United States, 136 S. Ct. 2510 (2016). The Court denied that
The Supreme Court issued the Beckles decision on March 6, 2017, holding that the United
States Sentencing Guidelines were not subject to a void for vagueness challenge under the Fifth
Amendment. 137 S. Ct. 886 (2017). Petitioner’s counsel then filed a Motion to Voluntarily
Dismiss on March 29, 2017, citing Rule 41(a)(2) of the Federal Rules of Civil Procedure.
Attached to the motion is a consent form signed by Petitioner.
Meanwhile, Petitioner filed a pro se Motion to Appoint Counsel on May 18, 2017.
Petitioner seeks the appointment of counsel for the purpose of investigating whether he qualifies
for a sentence reduction under the Supreme Court’s decision in Mathis v. United States, 136 S. Ct.
2243 (2016). 2 The Court withdraws the reference to the United States Magistrate Judge and
The Federal Public Defender represented Petitioner during the pendency of the criminal matter and continued to
provide legal representation for purposes of the habeas proceeding.
Petitioner’s letter-form motion references the Supreme Court decision in “Mathias” but provides no case
citation. Having been unable to locate any arguably relevant decision styled by that name, the Court
concludes that Petitioner misspelled the name of the Mathis decision upon which he relies.
proceeds to consider the Motion to Appoint Counsel in conjunction with the Motion to Voluntarily
Petitioner’s pro se motion to raise a claim under Mathis clearly seeks post-conviction relief
that is only available through a § 2255 proceeding. Given the present state of affairs, the Court
must first determine whether Petitioner’s pro se Motion to Appoint Counsel undermines the
Motion to Voluntarily Dismiss. The Court concludes that the Motion to Voluntarily Dismiss
remains valid. Petitioner filed his pro se motion in his criminal case, not his pending habeas case,
and the argument offered in support of the request for counsel reflects Petitioner’s mistaken belief
that the § 2255 proceedings have already concluded. (Motion to Appoint Counsel, ECF No. 71
“[T]he attorney that I had during my previous legal proceedings I’m thinking no longer represents
me since that is over.”). Further, while not made explicit in the Motion to Voluntarily Dismiss,
circumstances suggest that Petitioner moved to withdraw the § 2255 Petition after the adverse
decision in Beckles. Nothing in Petitioner’s pro se motion contradicts the reasoned assessment of
his counsel that Beckles cut off any hope of relief under Johnson, nor does the motion undermine
Petitioner’s voluntary consent to dismissal.
The Court therefore GRANTS the Motion to
Voluntarily Dismiss and DISMISSES the § 2255 Petition and its supplement WITHOUT
The Court now turns to the Motion to Appoint Counsel. As stated, the pro se motion seeks
the appointment of counsel for the purpose of raising a claim under Mathis. The Court may
appoint counsel for habeas petitions filed under § 2255 if “the interests of justice so require.” 18
U.S.C. § 3006A(a)(2). Appointment of counsel is unwarranted because the statute of limitations
acts as a bar to the assertion of a Mathis claim. The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) establishes a one-year statute of limitations for federal inmates seeking
post-conviction relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2255(f). The one-year period
runs from the latest of the following dates:
(1) the date on which the judgment of conviction becomes final;
(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 governmental action;
(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.
Any habeas petition filed pursuant to Mathis would clearly be untimely under § 2255(f)(1).
Nearly eight years elapsed between the date Petitioner’s conviction first became final in May 2009
and the date he filed the motion sub judice. See Clay v. United States, 537 U.S. 522, 525 (2003)
(a judgment of conviction becomes final when the time expires for filing a direct appeal); Fed. R.
App. P 4(b)(1)(A) (setting out fourteen-day period for filing a notice of appeal following entry of
judgment in a criminal case). Further, the alternative dates for accrual set forth in subsections (2)
and (4) of § 2255(f) are inapplicable here. Petitioner’s only potential option is to invoke §
2255(f)(3) by arguing that his motion was filed within one year of the Supreme Court’s decision
in Mathis. Even that argument, however, would be unsuccessful.
In Mathis, the Supreme Court clarified the proper application of the categorical approach
used in sentencing enhancements under the Armed Career Criminal Act.
In that case, the
defendant’s prior conviction stemmed from an Iowa burglary statute that encompassed conduct
broader than the potential conduct encompassed by federal generic burglary. The Supreme Court
explained that a state crime does not qualify as an ACCA predicate violent felony offense “if its
elements are broader than those of a listed generic offense.” Mathis, 136 S. Ct. at 2251. Thus,
unless the state statute is divisible, determining whether the statute sets forth a crime of violence
must “focus solely on whether the elements of the crime sufficiently match the elements of [the]
generic [offense].” Id. at 2248.
In deciding questions of retroactivity under § 2255(f)(3), courts apply a three-step inquiry
developed in Teague v. Lane, 489 U.S. 288 (1989). See United States v. Sanders, 247 F.3d 139,
146 (4th Cir. 2001). At the first step, the court determines when the defendant’s conviction
became final. Id. “Second, the court must decide whether the Supreme Court’s ruling indeed
constitutes a ‘new rule’ of constitutional criminal procedure.” Id. Third, if the court concludes
that the decision announced a new rule, “then it does not apply retroactively unless it falls within
one of the two narrow exceptions to the Teague bar.” Id. at 146–47.
The Court has already determined that Petitioner’s conviction became final in May 2009.
The next step of the three-part inquiry is dispositive. “[A] case announces a new rule if the result
was not dictated by precedent existing at the time the defendant’s conviction became final.”
Teague, 489 U.S. at 301; see Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013) (“A case does
not ‘announce a new rule when it is merely an application of the principle that governed’ a prior
decision to a different set of facts.” (quoting Teague, 489 U.S. at 307)). Mathis did not depart
from longstanding precedent, nor did it forge new territory in the realm of criminal procedure.
Quite to the contrary—the Supreme Court saw its holding as compelled by precedent:
For more than 25 years, we have repeatedly made clear that application of ACCA
involves, and involves only, comparing elements. Courts must ask whether the
crime of conviction is the same as, or narrower than, the relevant generic offense.
They may not ask whether the defendant’s conduct—his particular means of
committing the crime—falls within the generic definition. And that rule does not
change when a statute happens to list possible alternative means of commission:
Whether or not made explicit, they remain what they ever were—just facts, which
ACCA (so we have held, over and over) does not care about.
Mathis, 136 S. Ct. at 2257.
Accordingly, this Court joins numerous others in finding that Mathis did not announce a
new rule of constitutional law that has been made retroactive to cases on collateral review. See
Washington v. United States, 868 F.3d 64, 66 (2d Cir. 2017) (per curiam) (finding the Mathis Court
did not create a new rule); In re Lott, 838 F.3d 522, 523 (5th Cir. 2016) (per curiam) (inmate “failed
to make a prima facie showing that Mathis . . . set forth new rules of constitutional law that have
been made retroactive to cases on collateral review”); United States v. Taylor, 672 F. App’x 860,
864 (10th Cir. 2016) (“Mathis did not announce a new rule”); Dawkins v. United States, 829 F.3d
549, 551 (7th Cir. 2016) (“Mathis did not announce [a new] rule; it is a case of statutory
interpretation.”); Haley v. United States, No. 2:12cr149, 2017 WL 2297022, at *3 (E.D. Va. May
24, 2017) (“[T]he Mathis Court did not announce a new rule of constitutional law that has been
made retroactive to cases on collateral review.”). Petitioner’s Motion to Appoint counsel must be
For the reasons set forth above, the Court WITHDRAWS the reference to the United
States Magistrate Judge and GRANTS Petitioner’s Motion to Voluntarily Dismiss. (ECF No. 70).
The § 2255 Petition and its supplement are hereby DISMISSED WITHOUT PREJUDICE.
(ECF Nos. 49, 55.) The Clerk is DIRECTED to remove Civil Action No. 5:16-cv-5683 from the
Court’s active docket. The Motion to Appoint Counsel filed in the underlying criminal matter,
(ECF No. 71), is DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
October 5, 2017
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