United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody, ECF No. 70, filed by the
Defendant, Corey M. Carr. Rule 4(b) of the Rules
Governing Section 2255 Proceedings for the United
States District Courts requires initial review of a
§ 2255 motion, and describes the initial review process:
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.
pled guilty to Count II of the Indictment, charging him with
a violation of 18 U.S.C. § 841. He entered into a plea
agreement in which he stipulated to a sentence of 151 months
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C),
and in which he waived his right of appeal and his right to
present a motion under 28 U.S.C. § 2255, with two
exceptions, neither of which is applicable here. He was
sentenced in accordance with the plea agreement on July 20,
2010, and did not file any direct appeal. This is his first
§ 2255 motion, filed on June 23, 2017, one year after
the issuance of the United States Supreme Court's
decision in Mathis v. U.S., 136 S.Ct. 2243 (2016).
He asserts that the Mathis decision should have an
impact on his status as a career offender and give rise to
prisoner sentenced by this Court “claiming the right to
be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United
States” may move the Court “to vacate, set aside
or correct the sentence.” 28 U.S.C. § 2255(a).
Section 2255(f) requires all § 2255 motions to be filed
within one year from:
(1) the date on which the judgment of conviction becomes
(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
(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.
28 U.S.C. § 2255(f). Carr suggests that Subsection
(f)(3) provides an avenue for his § 2255 Motion.
Therefore, in order to succeed, the § 2255 Motion must
identify and assert a “right [to a corrected sentence]
. . . newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review.” Id. (emphasis added).
determine whether a right ‘has been newly recognized by
the Supreme Court, ' we must inquire whether the Supreme
Court announced a ‘new rule' within the meaning of
the Court's jurisprudence governing retroactivity for
cases on collateral review.” Headbird v. United
States, 813 F.3d 1092, 1095 (8th Cir. 2016) (quoting 28
U.S.C. § 2255(f)(3)) (citing Teague v. Lane,
489 U.S. 288, 301 (1989)).
Mathis, the Supreme Court held that the 15-year
mandatory minimum term under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1),
(e)(2)(B)(ii), is applicable only where the elements of
predicate offenses committed by a defendant correspond with
the elements of the generic predicate offenses listed in the
ACCA. In other words, if a defendant is convicted under a
state criminal statute that provides alternative means for
commission of the crime, and those means are broader than the
elements of the generic version of the predicate crime under
the ACCA, the conviction may not be used as a predicate
offense for purposes of the ACCA, even though the
defendant's actual conduct fell within the definition of
the generic crime. Mathis, 136 S.Ct. at 1156-57.
was determined to be a career offender under the Guidelines,
§§ 4B1.1 and 4B1.2, based on two predicate
offenses: Robbery and Possession with Intent to Deliver Crack
Cocaine. Carr's criminal history category was VI, and
would have remained VI without the offender
enhancement. His base offense level was 32, due to the
career offender enhancement, and would have been 28 but for
that enhancement. With a three-point ...