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Burnet v. United States

United States District Court, D. Maryland

May 9, 2017

WESLEY MITCHELL BURNETT, #57600-037
v.
UNITED STATES OF AMERICA Criminal No. DKC-14-0211-002

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.

         1. Background

         On July 29, 2016, [1] Wesley Burnett signed and deposited for mailing a paper titled “Motion to Extend and Enlarge the Time for Defendant to File Appeal Brief” (ECF No. 142). In his motion, received here on August 4, 2016, he indicated that he wished to challenge his conviction and sentence but was about to be transferred from FCI-Seagoville, Texas to another institution. Id. Although Burnett stated he would be seeking “coram nobis” relief, he had not completed his 42-month sentence imposed by this court on June 16, 2015. Thus, it appeared he sought to additional time to file a motion to vacate pursuant to 28 U.S.C. § 2255. No grounds for relief were found within the motion. Nonetheless, the court, on September 6, 2016, construed his motion as a motion to vacate, set aside, or correct sentence filed pursuant to 28 U.S.C. § 2255 and granted him 21 days to supplement his motion using the appropriate forms (which the Clerk provided). (ECF No. 143).

         On September 23, 2016, Burnett requested additional time to prepare a supporting memorandum to accompany his motion to vacate. (ECF No. 144). Again, no grounds for relief were identified in the extension request. On September 28, 2016, the court granted the request, ordering Burnett to file his supplement on or before December 28, 2016. (ECF No. 145).

         Burnett did not use the court-provided forms to file his supplement; rather, on January 3, 2017, the Clerk received a legal memorandum, postmarked December 29, 2016, setting forth his arguments that his conviction be set aside because it is “void for vagueness.” (ECF No. 146). Under the “prison mailbox rule, ” the paper is deemed filed on the day it is handed to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 270-76 (1988); United States v. Dorsey, 988 F.Supp. 917, 919-20 (D. Md. 1998) (holding that a petition shall be deemed to have been filed on the date it was deposited with prison authorities for mailing under the prison mailbox rule); see also United States v. McNeill, 523 F.App'x 979, 982-83 (4th Cir. 2013). Arguably, Burnett turned his memorandum over to prison officials the day before its posting, on December 28, 2016, [2] and thus complied with the court-imposed deadline.

         On January 19, 2017, the Government was ordered to respond solely as to the timeliness of Burnett's motion to vacate as supplemented with his memorandum. ECF No. 148. That response is now before the court. ECF No. 149. Although notified that he may reply to the Government's response within 21 days (ECF No. 148 at p. 3, ¶ 2), Burnett has chosen not to respond.

         2. Analysis

         In his motion and supplemental memorandum, Burnett asserts that he is entitled to vacatur because the statutory basis for his conviction is “void for vagueness.” ECF 146 at p. 1. Burnett supports his claim for relief on the line of recent cases that addressed the constitutionality of the “residual clause, ” specifically citing Johnson v. United States, 135 S.Ct. 2551 (2015), as well as Mathis v. United States, 136 S.Ct. 2243 (2016), and Beckles v. United States, No. 15-8544 (U.S. S.Ct. March 14, 2016), id. at p. 4, and provides a narrative explaining why he thinks these decisions entitle him to the relief he requests, i.e., vacatur due to “‘vagueness' associated with the enhancements set forth by the sentencing court.” Id.

         Before the merits raised in Burnett's memorandum can be considered, the court must determine whether the motion is timely. Under the provisions of 28 U.S.C. § 2255(f), the limitation period runs 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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