United States District Court, D. New Jersey
STANLEY R. CHESLER, U.S.D.J.
moves for relief under 28 U.S.C. § 2255 pursuant to the
Supreme Court's decision in Mathis v. United
States, 579 U.S. __, 136 S.Ct. 2243, 195 L.Ed.2d 604
(2016), which held that a state crime does not qualify as an
Armed Career Criminal Act ("ACCA") predicate
offense when its elements are broader than the elements of a
listed generic offense. For the reasons explained below, the
Court will dismiss the petition as untimely and without
may afford relief under Section 2255 on a number of grounds
including, "that the sentence was imposed in violation
of the Constitution or the laws of the United States."
Id. § 2255(a); see also 28 U.S.C. § 2255
Rule 1(a). The statute provides that, as a remedy for an
unlawfully-imposed sentence, "the court shall vacate and
set the judgment aside and shall discharge the prisoner or
resentence him or grant a new trial or correct the sentence
as may appear appropriate." 28 U.S.C. § 2255(b).
The court accepts the truth of the defendant's
allegations when reviewing a Section 2255 motion unless those
allegations are "clearly frivolous based on the existing
record." United States v. Booth, 432 F.3d 542,
545 (3d Cir. 2005). A court is required to hold an
evidentiary hearing when the motion "allege[s] any facts
warranting § 2255 relief that are not clearly resolved
by the record." United States v. Tolliver, 800
F.3d 138, 141 (3d Cir. 2015) (quoting Booth, 432
F.3d at 546).
criminal defendant bears the burden of establishing his
entitlement to § 2255 relief. See United States v.
Davies, 394 F.3d 182, 189 (3d Cir. 2005). For its part,
"the court must accept the truth of the movant's
factual allegations unless they are clearly frivolous on the
basis of the existing record." United States v.
Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal
quotation marks and citation omitted). Additionally,
"[i]t is the policy of the courts to give a liberal
construction to pro se habeas petitions." Rainey v.
Varner, 603 F.3d 189, 198 (3d Cir. 2010). "If it
plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party." Rule 4 of
the Rules Governing Section 2255 Proceedings for the United
States District Courts.
appears to be Petitioner's first § 2255 motion.
Petitioner, however, filed the instant motion over a year
after his conviction became final. The motion is thus
untimely unless he can prove that it falls within an
exception to the general one-year limitation period for
habeas petitions. See 28 U.S.C. § 2255(f).
Section 2255 contains an alternate commencement date for the
one-year statute of limitations running from "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 on collateral
review." 28 U.S.C. § 2255(f)(3).
relevant part, Petitioner was designated as a career offender
pursuant to Section 4B1.1 of the United States Sentencing
Guidelines because he had several prior felony convictions
for controlled substance offenses. The court sentenced
Petitioner to 151 months of imprisonment on June 19, 2012.
(See 07-CR-143, at No. 317.) Petitioner alleges that
the claims raised in his motion were "not made available
until the Supreme Court's recent decision in Mathis
v. United States (citation omitted) and the Third
Circuit Court of Appeals' decision in Cruz v.
Attorney General United States of America, 659 Fed.Appx.
114 (3d Cir. 2016)." Based on the allegations in his
motion, the Court construes Petitioner to assert that
Mathis announced a new right that retroactively
applies to his conviction, rendering his motion timely under
28 U.S.C. § 2255(f)(3).
new rules permitting successive § 2255 motions, new
"rights" triggering § 2255(f)(3) need not be
constitutional. See United States v. Lloyd, 188 F.3d
184, 187 n.8 (3d Cir. 1999) (holding an initial petition can
be based on a new statutory right because the language is
"broader than the 'new rule of constitutional
law' expressly required for second or successive §
2255 motions), abrogated in part on other grounds by Dodd
v. United States, 545 U.S. 353, 357 (2005); see also
Boatwright v. Warden Fairton FCI, No. 17-3534, 2018 WL
3640305, at *2 (3d Cir. July 31, 2018) (explaining same).
Furthermore, under § 2255(3), both the Supreme Court and
lower federal courts can decide the retroactive applicability
of a new rule of constitutional law announced by the Supreme
Court when reviewing an initial (as opposed to successive)
petition. See U.S. v. Swinton, 333 F.3d 481, 487 (3d
Cir. 2003) (holding that "the statute of limitations
provision of § 2255 allows district courts and courts of
appeals to make retroactivity decisions"). Thus, if
Mathis recognized a new right for purposes of §
2255(f)(3), Petitioner's petition would be timely if
brought as a § 2255 motion because he filed it within
one year of the date Mathis was decided.
(See ECF No. 1.)
issue in Mathis was an Iowa burglary statute that
proscribed entry into or onto locations that included a
building, a structure, land, water or an air vehicle. Because
generic burglary does not proscribe burglary of vehicles, the
Iowa offense was overly inclusive; it included conduct that
was not generic burglary. The sentencing court looked to the
documents pertaining to Mathis's prior convictions, which
revealed that Mathis had burgled structures not vehicles, and
the district court concluded that the sentencing enhancement
under the ACCA applied. The Eighth Circuit affirmed, holding
that whether the itemized list of places "amounted] to
alternative elements or merely alternative means to
fulfilling an element, the statute is divisible, and we must
apply the modified categorical approach." The Supreme
Court disagreed and reversed the Eighth Circuit because the
Iowa Supreme Court has held that the Iowa statute sets forth
"alternative method[s] of committing [the] single
crime," and an Iowa "jury need not agree on which
of the locations was actually involved." See
Mathis, 136 S.Ct. 2250-51. Thus, under Mathis,
a state crime does not qualify as an ACCA predicate offense
when its elements are broader than the elements of a listed
generic offense. The Third Circuit has applied the reasoning
of Mathis in determining whether a state crime
qualifies as a predicate offense for career offender
enhancement under § 4B1.1 See United States v.
Glass, No. 16-2906, 2018 WL 4443889, at *2 (3d Cir. Aug.
22, 2018) (precedential).
Third Circuit has not yet decided in a published decision
whether Mathis recognized a new right for purposes
of an initial §2255 petition under § 2255(f)(3); it
has, however, cited approvingly to the reasoning of several
circuit courts that have determined that there is nothing new
about Mathis, and its predecessor Descamps v.
United States, 570 U.S. 254 (2013). See
Boatwright, 2018 WL 3640305, at *2. As recently
explained by the Third Circuit,
Every Court of Appeals to have addressed Mathis in
[the context of an initial petition] or the context of
successiveness-which requires a "new rule," 28
U.S.C. § 2255(h)(2)-has [concluded that Mathis
is not new]. See, e.g., Dimott v. United States, 881
F.3d 232, 237 (1st Cir. 2018), cert, denied, No.
17-1251, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2018
WL 1243146 (U.S. June 25, 2018); In re Conzelmann,
872 F.3d 375, 376-77 (6th Cir. 2017) (collecting cases).
Other courts have concluded that Mathis's
immediate predecessor, Descamps v. United States,
570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), is not
"new" for purposes of § 2255(f)(3) either.
See, e.g., Beeman v. United States, 871 F.3d 1215,
1219-20 (11th Cir. 2017); United States v. Morgan,
845 F.3d 664, 666-67 (5th Cir. 2017) (collecting cases).
Their reasoning would appear to apply with equal force to
Mathis as well.
Boatwright, 2018 WL 3640305, at *2 (considering a
Mathis claim brought under § 2241 and declining
to decide whether Mathis announces a new right under
Court agrees with the circuit courts that have held that
Mathis is not new. In Mathis, the Supreme
Court stated that its "precedents make [it] a
straightforward case," observing that its prior rulings
concerning the ACCA dictated its conclusion. Mathis,
136 S.Ct. at 2257. The Court essentially stated that its
holding was predicated on 25 years of precedent. Id.
Because Mathis does not announce a new right but
simply applies the Court's prior precedents to a new
factual scenario, Petitioner's motion does not fall
within the exception under 28 U.S.C. § 2255(f)(3), and
his claim is untimely and subject to dismissal on that basis.
even if the Court were to find that Petitioner could proceed
under 28 U.S.C. § 2255(f)(3), his claim fails on the
merits. Petitioner appears to contend that he was designated
as a career offender under the Guidelines based on his prior
drug convictions under N.J.S.A. 2C:35-7 in violation of
Mathis, and that the Third Circuit's decision in
Chang-Cruz v. Attorney Gen. United States of Am.,
659 Fed.Appx. 114 (3d Cir. 2016) supports his claim for
relief. He is incorrect.
relevant here, a defendant qualifies for a career-offender
enhancement under the Guidelines if he or she "has at
least two prior felony convictions of... a controlled
substance offense." U.S.S.G. § 4B1.1(a). A
"controlled substance offense" is an offense that
(1) is punishable by a term of imprisonment that exceeds one
year and (2) "prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a
counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense."
Id. § 4B 1.2(b). A state conviction cannot
qualify as a "controlled substance offense" if its
elements are broader than those listed in § 4B1.2(b).
See Mathis, ...