United States District Court, Southern District of Indiana, Indianapolis Division
MICHAEL A. COOK, Petitioner,
UNITED STATES OF AMERICA.
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY
Hon. William T. Lawrence, Judge United States District Court
For the reasons explained in this Entry, the motion of Michael A. Cook (“Mr. Cook”) for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.
I. The § 2255 Motion
On April 6, 2010, Mr. Cook was charged in an Indictment with one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) in 1:10-cr-0059-WTL-KPF-1.
On January 5, 2011, Mr. Cook filed a petition to enter a plea of guilty and a plea agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. On March 30, 2011, the Court conducted a hearing on Mr. Cook’s petition to enter a plea of guilty. At the hearing, the Court advised Mr. Cook of his rights and heard the factual basis for the plea. The Court determined that Mr. Cook was competent to enter a plea of guilty and his plea was knowingly and willingly made. The Court accepted Mr. Cook’s plea of guilty and adjudged him guilty as charged.
A sentencing hearing was held on the same day. The Court sentenced Mr. Cook to a term of 180 months in prison, to be followed by three years of supervised release. Judgment was entered on the docket on May 4, 2011.
Complying with the terms of the plea agreement, Mr. Cook did not appeal his conviction or sentence. On June 16, 2014, Mr. Cook filed this motion for relief pursuant to 28 U.S.C. § 2255. He signed that motion and placed it in the prison mail system on June 12, 2014.
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). In his § 2255 motion, Mr. Cook asserts that his sentence is illegal because one of his three prior convictions should not have qualified him as an Armed Career Criminal. He argues that under Descamps v. United States, 133 S.Ct. 2276 (2013), the Indiana statute for burglary is overbroad because it defines building or structure and does not require unlawful entry. The United States argues that Mr. Cook’s § 2255 motion is time-barred and also barred by the waiver of post-conviction relief rights found in the written plea agreement.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year statute of limitations period for § 2255 motions. 28 U.S.C. § 2255(f). For purposes of § 2255(f)(1), that period runs from “the date on which the judgment of conviction becomes final.” Id. A judgment of conviction becomes final when the conviction is affirmed on direct review or when the time for perfecting an appeal expires. Clay v. United States, 537 U.S. 522, 527 (2003). As noted, the judgment of conviction was entered on the clerk’s docket on May 4, 2011. Mr. Cook’s conviction became final on May 18, 2011. Using the one-year period from the date on which the judgment of conviction became final, Mr. Cook’s present motion would have to have been filed by May 18, 2012, to be timely. Applying the prison mailbox rule, see Houston v. Lack, 487 U.S. 266, 271 (1988), Mr. Cook’s § 2255 motion can be considered to have been filed on the date he placed the motion in the prison mail system, which was June 12, 2014. That date was more than two years after the § 2255(f)(1) statute of limitations period expired. Mr. Cook’s motion is time barred, unless he argues that another provision of § 2255(f) applies.
Mr. Cook acknowledges that his § 2255 motion was not timely filed under § 2255(f)(1). He argues instead that § 2255(f)(3) applies. That subsection provides that the one year limitation runs 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).
Mr. Cook argues that his motion is timely under § 2255(f)(3) because Descamps v. United States, 133 S.Ct. 2276 (2013), decided on June 20, 2013, created a newly recognized right which has been made retroactively applicable on collateral review. The Descamps decision provides Mr. Cook no basis for relief, however, because the Supreme Court has not made Descamps retroactive on collateral review. Groves v. United States, 755 F.3d 588, 593 (7th Cir. 2014); see also In re Jackson, 776 F.3d 292, 296 (5th Cir. 2015) (“Nothing in Descamps indicates that its holding announced a new rule that was constitutionally based, and Descamps did not announce that its holding applied retroactively to cases on collateral review.”). As noted by the government, the change in law regarding what offenses qualified as “violent felony” prior ...