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. 169, filed by the
Defendant, Martin Santiago Robles. 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.
Robles pled guilty to Count I of the Indictment, charging him
with a violation of 21 U.S.C. §§ 841(a) and 846. He
entered into a plea agreement in which he waived his right of
appeal and his right to initiate post-conviction proceedings,
with limited exceptions, none of which is applicable here.
Presentence Investigation Report (“PSR”), his
base offense level was consistent with the level recommended
by the parties in the plea agreement. He was determined to be
a career offender under the United States Sentencing
Guidelines, §4B1.1, based on two prior felony controlled
substance offenses. He was sentenced to a term of 262 months
incarceration-the lowest end of the applicable sentencing
guideline-and five years of supervised release. He did not
file a direct appeal, and this is his first § 2255
his §2255 Motion was filed on June 26, 2017, it was
processed through the correctional institution on June 20,
2017, within one year of the issuance of the United States
Supreme Court's decision in Mathis v. U.S., 136
S.Ct. 2243 (2016). Santiago Robles asserts that the
Mathis decision should have an impact on his status
as a career offender and give rise to resentencing.
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). Santiago Robles 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. ...