United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
March 16, 2012, Petitioner Eric Leroy Byrd was sentenced on
one count of possession with intent to distribute 50 grams or
more of cocaine base and one count of distribution of 5 grams
or more of cocaine base, in violation of 21 U.S.C. §
841(a). He was sentenced to a 132-month term of imprisonment
as a career offender under the United States Sentencing
Guidelines § 4B1.1. Criminal judgment was entered on
March 19, 2012. (ECF No. 32). No appeal was noted.
19, 2017, Byrd, who is now confined at the Federal
Correctional Complex in Petersburg, Virginia, filed a Motion
to Vacate pursuant to 28 U.S.C. § 2255, dated June 15,
2017, raising a challenge to his convictions. He argues that
his prior convictions “no longer support the career
offender enhancement” given the Supreme Court's
June 23, 2016 decision in Mathis v. United States,
136 S.Ct. 2243 (2016) and the Fifth Circuit's August 11,
2016 decision in United States v. Hinkle, 832 F.3d
569 (5th Cir. 2016). (ECF No. 41).
22, 2017, the court issued a show cause order granting the
parties an opportunity to brief the issue of timeliness.
Id. at ECF No. 42. On July 17, 2017, the Government
filed a response, arguing that the Motion to Vacate was
time-barred. (ECF No. 43). On July 27, 2017, Byrd filed a
reply to the Government's response. (ECF No. 46).
judgment was entered on March 19, 2012. As noted, Byrd did
not file an appeal. The one-year statute of limitations set
out under 28 U.S.C. § 2255(f)(1) began to run on that
date. See United States v. Sanders, 247 F.3d 139,
142 (4th Cir. 2001) (where no appeal taken, statute of
limitations begins to run on date the court entered the
judgment of conviction). Therefore, Byrd had until March 19,
2013, to file a timely Motion to Vacate. He did not do so.
one-year limitation period may be forgiven if a petitioner
shows that “1) extraordinary circumstances, 2) beyond
his control or external to his own conduct, 3) ... prevented
him from filing on time.” United States v.
Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (citing
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003)
(en banc)). A petitioner must show some wrongful
conduct by a respondent contributed to the delay in filing,
or that circumstances beyond his control caused the delay.
See Rouse, 339 F.3d at 246. “[A]ny resort to
equity must be reserved for those rare instances where ... it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result.”
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2006). Generally, the petitioner must show that he has been
diligently pursuing his rights and some extraordinary
circumstance prevented him from filing a timely petition.
See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
Rouse, 339 F.3d at 246.
does not argue equitable tolling. Rather, he invokes 28
U.S.C. § 2255(f)(3) to assert that his motion is timely
because it was statutorily tolled as filed within one year of
the U.S. Supreme Court decision in Mathis.
argument unavailing. 28 U.S.C. § 2255(f)(3) provides
that the one-year limitation period shall 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. The Fourth Circuit has clarified that
“to obtain the benefit of the limitations period stated
in § 2255(f)(3), [a petitioner] must show: (1) that the
Supreme Court recognized a new right; (2) that the right
‘has been ... made retroactively applicable to cases on
collateral review'; and (3) that [the movant] filed his
motion within one year of the date on which the Supreme Court
recognized the right.” United States v.
Mathur, 685 F.2d 396, 398 (4th Cir. 2012).
cannot utilize § 2255(f)(3) to justify the late filing
of his motion. First, Mathis did not set forth a new
rule of constitutional law. Mathis, 136 S.Ct. at
2257 (indicating its decision was based on longstanding
precedent). Multiple appellate courts have observed that the
ruling in Mathis did not recognize a
“new” right or rule; rather, it merely applied an
existing principle to a new set of facts. See,
e.g., Dawkins v. United States, 829 F.3d
549, 551 (7th Cir. 2016) (holding Mathis did not
announce a new rule of constitutional law made retroactive by
the Supreme Court); see also United States v.
Taylor, 672 Fed. App'x. 860, 864 (10th Cir. 2016)
(Mathis did not announce a new rule of law);
Holt v. United States, 843 F.3d 720, 722 (7th Cir.
2016) (Mathis is neither retroactive nor a new rule
of constitutional law). Further, this court and other
district courts have reached similar conclusions. See
Gary v. Kallis, 2017 WL 2242680 at *4 (D. Md. 2017)
(Supreme Court did not establish a new rule of law in
Mathis); Adams v. United States, 2017 WL
1040346 at *3 (D. Maine 2017) (Mathis does not apply
retroactively as it did not announce a new substantive rule
applicable to cases on collateral review); Blackwell v.
United States, 2016 WL 5849384, at *4-5 (W.D. Va. 2016)
(Mathis did not announce a new rule of
constitutional law). Thus, Petitioner's motion is subject
to dismissal as untimely.
reply, Byrd makes a claim arguing that his motion is timely
under § 2255(f)(4). (ECF No. 46). This provision
provides that the motion must be filed within one year from
the “date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.” Byrd's new argument
likewise lacks merit. The Mathis decision provided
the basis for Byrd's § 2255 filing. The date of the
Supreme Court decision in Mathis does not constitute
a date on which the facts supporting the claims presented
could have been discovered through the exercise of due
diligence. A legal decision that does not affect the validity
of the petitioner's own underlying conviction is not a
“new fact” for purposes of triggering §
2255(f)(4). See Whiteside v. United States, 775 F.3d
180, 183 (4th Cir. 2014).
addition to the above analysis, a Certificate of
Appealability must be considered. Unless a Certificate of
Appealability (“COA”) is issued, a petitioner may
not appeal the district court's decision in a § 2255
proceeding. 28 U.S.C. § 2253(c)(1); Fed. R. App. P.
22(b). A COA may issue only if the petitioner “has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The petitioner
“must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional
claims debatable or wrong, ” Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (citation and internal
quotation marks omitted), or that “the issues presented
are adequate to deserve encouragement to proceed further,
” Miller-El v. Cockrell, 537 U.S., 327 (2003);
see also see also Buck v. Davis, ___ U.S. ___, 137
S.Ct. 759, 773-74 (2017). Byrd does not satisfy this
standard, and the court declines to issue a Certificate of
Appealability. The Motion to Vacate will be dismissed. A
separate Order follows.
Mathis, which held that an
Iowa burglary conviction was not a predicate offense under
the Armed Career Criminal Act because the elements of the
state's burglary statute were broader than the elements
of the enumerated offense of generic burglary, simply
clarified the application of ...