United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
GONZALES RAMOS UNITED STATES DISTRICT JUDGE
Leon Lamont Wilson filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 (D.E. 72).
The United States of America (the "Government")
filed a motion for summary judgment seeking to dismiss
Movant's § 2255 motion as untimely, barred by
waiver, and substantively meritless (D.E. 74). Movant did not
respond. For the reasons stated herein, the Government's
motion for summary judgment is GRANTED, and
Movant's § 2255 motion is DENIED.
April 29, 2013, Movant pled guilty to possession with intent
to distribute 258.13 kilograms of marijuana in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
Movant's plea was pursuant to a written Plea Agreement
wherein he waived his right to appeal or collaterally attack
his sentence or conviction. The Presentence Investigation
Report (PSR) assigned Movant a base offense level of 26.
Movant had two prior felony controlled substance
offenses-both Tennessee convictions for possession with
intent to distribute cocaine-which rendered him a career
offender under U.S.S.G. § 4B 1.1 (b)(2) and increased
his offense level to 34. After credit for acceptance of
responsibility, Movant's total offense level was 31,
criminal history category VI, resulting in a Guideline
sentencing range of 188-235 months' imprisonment. At
sentencing, the Court adopted the PSR as written, then
granted a downward variance and sentenced Movant to 108
months' imprisonment, to be followed by 5 years'
was entered September 13, 2013. Movant appealed, but his
appeal was dismissed as frivolous on November 4, 2014, after
his appellate counsel filed an Anders brief. Movant
did not petition the Supreme Court for a writ of certiorari.
He filed the present § 2255 motion on or about June 20,
claims that his prior Tennessee convictions for possession
with intent to distribute cocaine cannot be used as predicate
offenses to support a career offender enhancement under
U.S.S.G. § 4B1.1, citing Mathis v. United
States, 136 S.Ct. 2243 (2016); United States v.
Tanksley, 848 F.3d 347 (5th Cir. 2017); United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016); and
Holt v. United States, 843 F.3d 720 (7th Cir. 2016).
28 U.S.C. § 2255
are four cognizable grounds upon which a federal prisoner may
move to vacate, set aside, or correct his sentence: (1)
constitutional issues, (2) challenges to the district
court's jurisdiction to impose the sentence, (3)
challenges to the length of a sentence in excess of the
statutory maximum, and (4) claims that the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255; United States v. Placente, 81 F.3d 555, 558
(5th Cir. 1996). "Relief under 28 U.S.C. § 2255 is
reserved for transgressions of constitutional rights and for
a narrow range of injuries that could not have been raised on
direct appeal and would, if condoned, result in a complete
miscarriage of justice." United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam).
In addition, "a collateral challenge may not do service
for an appeal." United States v. Frady, 456
U.S. 152, 165 (1982).
Statute of Limitations
motion made under § 2255 is subject to a one-year
statute of limitations, which, in most cases, begins to run
when the judgment becomes final. 28 U.S.C. §
2255(f). The Fifth Circuit and the Supreme Court
have held that a judgment becomes final when the applicable
period for seeking review of a final conviction has expired.
Clay v. United States, 537 U.S. 522, 531-32 (2003);
United States v. Gamble, 208 F.3d 536, 536-37 (5th
Cir. 2000) (per curiam).
conviction became final on February 2, 2015-90 days after the
Fifth Circuit dismissed his appeal. See S.Ct. R. 13.
He was required to file his § 2255 motion no later than
one year from that date, or on or before February 2, 2016.
Movant's motion was filed no earlier than June 20, 2017,
the day his motion is dated. See Rule 3(d), §
2255 RULES. Unless an exception applies to the standard
limitations period, Movant filed his motion over a year too
relies on Mathis, Hinkle, Tanksley, and
Holt to extend limitations for his claim that his
prior Tennessee convictions for possession with intent to
distribute cocaine are not proper predicate offenses to
qualify him as a career offender under the Sentencing
Guidelines. The Antiterrorism and Effective Death Penalty
Act's (AEDPA's) statute of limitations is extended
when "the 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).
Unfortunately for Movant, the Fifth Circuit has held that
Mathis did not recognize a new rule of
constitutional law that has been made retroactive to cases on
collateral review. In re Lott,838 F.3d 522, 523
(5th Cir. 2016). See also United States v. Nelson,
2017 WL 3034630, at *7 (S.D. Tex. June 6, 2017), report