United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
the Court is Richard Albert Hernandez's Motion to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody, filed on April 25, 2017 (Dkt. No. 43). The
undersigned magistrate judge submits this Report and
Recommendation pursuant to 28 U.S.C. §636(b) and Rule 1
of Appendix C of the Local Court Rules.
October 20, 2009, Movant Richard Albert Hernandez
(“Hernandez”) was charged in a one-count
indictment with possession with intent to distribute 100
grams or more of a mixture or substance containing a
detectable amount of heroin, in violation of 21 U.S.C. §
841(a)(1) and 841(b)(1)(B). Dkt. No. 1. On November 18, 2009,
the United States gave Hernandez written notice of its intent
to use his prior felony drug conviction to enhance his
sentence, pursuant to 21 U.S.C. § 851. Dkt. No. 12. On
January 13, 2010, Hernandez entered a plea of guilty to the
one-count indictment pursuant to a plea agreement. On March
8, 2010, the District Court sentenced Movant to a 120-month
term of imprisonment, followed by an eight-year term of
supervised release, a $100 mandatory assessment fee and an
order of forfeiture. See Judgment and Commitment
Order (Dkt. No. 36). Hernandez did not file a direct appeal
of his conviction and sentence.
motion, Hernandez argues that his sentence enhancement under
21 U.S.C. § 851 was erroneous because his prior
convictions do not qualify as predicate offenses under the
sentencing guidelines, relying on the Supreme Court's
decision in Mathis v. United States, 136 S.Ct. 2243
(2016), and the Fifth Circuit's subsequent opinions in
Hinkle v. United States, 832 F.3d 569 (5th Cir.
2016), and United States v. Tanksley, 848 F.3d 347
(5th Cir. 2017).
The AEDPA's Time Limitations
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) establishes a one-year statute of
limitations period for filing a § 2255 motion in federal
court. 28 U.S.C. § 2255(f). A § 2255 movant
generally must file his claim for relief within one year of
the date when his conviction becomes final. Id. at
§ 2255(f)(1). As noted above, the District Court
sentenced Hernandez and entered its Judgment on March 8,
2010. When a defendant does not file a direct appeal, as in
this case, his conviction becomes final on the day when the
time for filing a direct appeal expires. United States v.
Scruggs, 691 F.3d 660, 669 (5th Cir. 2012), cert.
denied, 133 S.Ct. 1282 (2013). Accordingly,
Hernandez's conviction became final on March 22, 2010.
See Fed. R. App. P. 4(b)(1)(A) (a defendant's
notice of appeal must be filed in the district court within
14 days after entry of the judgment). Because Hernandez did
not file this motion until April 24, 2017, his petition is
clearly untimely under § 2255(f)(1), unless it falls
within an exception to the tolling rules for 2255 petitions.
relies on the Supreme Court's decision in Mathis v.
United States, in an attempt to overcome the one-year
limitations period in § 2255(f)(1). Hinkle's
reliance on Mathis suggests he is arguing that the
one-year limitations period should not run from the date his
conviction became final, but instead should run 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 to cases on collateral review.” 28 U.S.C.
§ 2255(f)(3). However, Hernandez's reliance on
§ 2255(f)(3) is misplaced. Mathis held that,
for the purpose of determining whether an offense qualifies
as an ACCA predicate, the court takes a modified categorical
approach, looking to the statutory elements of the offense
rather than to the means of commission. 136 S.Ct. at 2257. As
numerous courts in this Circuit have noted,
“Mathis did not set forth a new rule of
constitutional law that has been made retroactive to cases on
collateral review.” Lopez v. United States,
2017 WL 1284946 at * 2 (W.D. Tex. April 5, 2017) (J. Sparks)
(quoting Milan v. United States, 2017 WL 535599, at
*2 (N.D. Tex. Jan. 18, 2017)). See also, In re
Lott, 838 F.3d 522, 523 (5th Cir. 2016) (denying
authorization to file a successive § 2255 motion because
the defendant failed to make the requisite showing that
Mathis created “new rules of constitutional
law that have been made retroactive to cases on collateral
review.”). Because the Supreme Court has not made
Mathis retroactively applicable to cases on
collateral review, § 2255(f)(3) is not applicable, and
Hernandez's one year limitations period commenced on the
date his conviction became final.
reliance on Hinkle v. United States, 832 F.3d 569
(5th Cir. 2016), and United States v. Tanksley, 848
F.3d 347 (5th Cir. 2017) does not overcome this problem. As
Judge Sparks recently noted, “[t]hese cases did not
write new law, nor do they constitute retroactively
applicable Supreme Court decisions.” Lopez,
2017 WL 1284946 at * 3. Accordingly, Hernandez's §
2255 Motion is time-barred under 2255(f)(1).
upon the foregoing, the Magistrate Court RECOMMENDS that the
District Court DISMISS Kenneth Hernandez's Motion to
Vacate, Set Aside, or Correct Illegal Sentence under 28
U.S.C. § 2255 (Dkt. No. 43) as time-barred.