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United States v. Hatten

United States District Court, D. Nebraska

April 12, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTOINE HATTEN, Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court for initial review of a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”), ECF No. 145, filed by pro se Defendant, Antoine Hatten. Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a defendant's § 2255 motion. Rule 4(b) states:

The judge who receives the motion must promptly examine it. 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. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         BACKGROUND

         After pleading guilty to the offenses of possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count I), and possession of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count II), the Defendant received a sentence of 292 months incarceration on Count I and 60 months incarceration on Count II, to be served consecutively, to be followed by five years of supervised release on both Count I and Count II, to be served concurrently.[1] ECF No. 77. The Defendant did not appeal the conviction or sentence.

         In his § 2255 Motion, the Defendant asserts that the sentence associated with Count II should be vacated pursuant to the Supreme Court's decisions in Johnson v. United States, 576 U.S.__, 135 S.Ct. 2551 (2015), and Welch v. United States, 578 U.S.__, 136 S.Ct. 1257 (2016). In Johnson, the Supreme Court held the residual clause[2] of the Armed Career Criminal Act of 1984, 18 U.S.C. §924(e)(1), (the “ACCA”), to be unconstitutionally vague, and therefore void. 135 S.Ct. at 2563. In Welch, the Supreme Court held “that Johnson is retroactive in cases on collateral review[.]” 136 S.Ct. at 1268.

         Although Johnson invalidated only the residual clause in § 924(e)(2)(B) of the ACCA, the Defendant contends that In re Pinder, 824 F.3d 977 (11th Cir. 2016), and In re Chance, 831 F.3d 1335 (11th Cir. 2016), have extended Johnson to invalidate a similarly worded clause in § 924(c)(3)(B) of the ACCA. Moreover, the Defendant argues that his Count II sentence fell within the scope of the similarly worded clause in § 924(c)(3)(B) and, therefore, in light of Pinder, Chance, and Johnson, his sentence associated with Count II must be vacated.

         DISCUSSION

         The Court concludes that Defendant's § 2255 Motion is untimely. Section 2255 motions are subject to a one-year statute of limitations. 28 U.S.C. § 2255(f). The one-year limitation period begins to run from the latest of:

(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 ...

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