United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
JANE MAGNUS-STINSON, CHIEF JUDGE
reasons explained in this Entry, the motion of Nicholas
Alston 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.
The § 2255 Motion
August 20, 2012, Mr. Alston was charged in an Indictment with
one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g) and 924(e). No.
2:12-cr-0025-JMS-CMM-1 (“Crim. Dkt.”). On May 20,
2013, Mr. Alston filed a petition to enter a plea of guilty.
Crim. Dkt. 26. During the change of plea and sentencing
hearing on December 3, 2013, the Court found that Mr. Alston
was fully competent and able to enter an informed plea, the
plea was made knowingly and voluntarily, and the plea was
supported by an independent basis in fact containing each of
the essential elements of the offense charged. Crim. Dkt. 38,
39. Mr. Alston was determined to be an armed career criminal
pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e) based
on four prior convictions for dealing cocaine. Crim. Dkt. 1;
Crim. Dkt. 32. The Court sentenced Mr. Alston to 180 months
of imprisonment, the applicable mandatory minimum sentence,
to be followed by two years of supervised release.
Id. Judgment of conviction was entered on December
Alston did not appeal his conviction or sentence. On January
12, 2016, Mr. Alston filed this, his first, motion to vacate
pursuant to 28 U.S.C. § 2255. After the United States
responded, Mr. Alston filed a supplemental claim. The United
States supplemented its response and Mr. Alston has replied.
The action is now ripe for resolution.
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). A court may grant relief from a
federal conviction or sentence pursuant to § 2255
“upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). “Relief under
§ 2255 is available only in extraordinary situations,
such as an error of constitutional or jurisdictional
magnitude or where a fundamental defect has occurred which
results in a complete miscarriage of justice.”
United States v. Coleman, 763 F.3d 706, 708 (7th
Cir. 2014) (internal quotation omitted).
Alston brings the following claims: 1) he is actually
innocent of his conviction under the Armed Career Criminal
Act in accordance with Mathis v. United States, 136
S.Ct. 2243 (2016); and 2) his sentence was improperly
enhanced based on his having four dealing in cocaine
convictions which were imposed on the same day in violation
of Amendment 709. Dkt. 1; dkt. 16.
respondent first argues that Mr. Alston's § 2255
motion is barred by the statute of limitations.
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 December 26,
2013. Mr. Alston's conviction became final on January 9,
2014. Fed. R. App. P. 4(b)(1)(A). Using the one-year
period from the date on which the judgment of conviction
became final, Mr. Alston's present motion would have to
have been filed by January 9, 2015, to be timely. Applying
the prison mailbox rule, see Houston v. Lack, 487
U.S. 266, 271 (1988), Mr. Alston's § 2255 motion may
be considered to have been filed on the date he placed the
motion in the prison mail system, January 2,
2016. That date was almost one year after the
§ 2255(f)(1) statute of limitations period expired.
2255(f)(3) creates an exception to the one-year statute of
limitations for § 2255 petitions. It allows a fresh year
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.” Id. The case Mr. Alston relies on,
Mathis, was decided on June 23, 2016, but it
“has not been declared retroactive by the Supreme
Court-nor is it a new rule of constitutional law.”
Holt v. United States, 843 F.3d 720, 722 (7th Cir.
2016). Therefore, Mathis did not start a new statute
of limitations under 28 U.S.C. § 2255(f)(3) and does not
prevent Mr. Alston's motion to vacate from being
time-barred. No further discussion of the holding of
Mathis is warranted.
Mr. Alston's motion to vacate were not time-barred, his
claim based on Amendment 709 would provide no relief.
Amendment 709 became effective in November 2007, years before
Mr. Alston was charged, convicted, and sentenced.
“Amendment 709 changed the guidelines to require
counting prior sentences separately unless they were imposed
on the same day, . . .” United States v.
Alexander, 553 F.3d 591, 592 (7th Cir. 2009) (internal
Alston sold cocaine on four different dates in July 2005. He
pled guilty on all four counts in a single day, but the
offenses arose on separate occasions. Crim. Dkt. 32; Crim.
Dkt. 39, at 22. Section 924(e)(1) provides, in full, that
“”[i]n the case of a person who violates section
922(g) of this title and has three previous
convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious
drug offense, or both, committed on occasions
different from one another, such person shall be fined
under this title and imprisoned not less than fifteen
years, and, notwithstanding any other provision of law,
the court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction under section 922(g). 18 U.S.C.A. § 924(e)(1)
(emphasis added). It is based on the Armed Career Criminal
Act (“ACCA”) that Mr. Alston's sentence was
fifteen years. “Amendment 709, which altered the rules
for calculating criminal history under the Sentencing
Guidelines, has no relevance to the determination whether a
defendant qualifies as an Armed Career Criminal.”
United States v. Burton,327 Fed.Appx. 666, 667,
2009 WL 1845640 (7th Cir. June 29, 2009); United States
v. Runnels,269 Fed.Appx. 609, 610, 2008 WL 707301 (7th
Cir. March 18, 2008) (the guideline rules on counting prior
sentences do not apply to the ACCA enhancement for separate
crimes). As counsel discussed during sentencing, the
Sentencing Guidelines' approach to counting prior
sentences in criminal history calculations is different ...