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United States v. Shepherd

United States District Court, N.D. Ohio, Eastern Division

November 13, 2017

United States of America, Respondent,
v.
Dustin C. Shepherd, Petitioner.

          MEMORANDUM OF OPINION AND ORDER

          PATRICIA A. GAUGHAN UNITED STATES DISTRICT COURT CHIEF JUDGE

         Introduction

         This matter is before the Court upon Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 60). For the following reasons, the motion is DENIED.

         Facts

         On April 22, 2014, Petitioner was indicted for conspiracy to distribute methamphetamine and marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B); being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1); possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii); possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Petitioner pleaded guilty to four counts of the indictment pursuant to a plea agreement. Based on Petitioner's prior felony convictions, Petitioner was classified as a career offender with an offense level 34, and was sentenced under the United States Sentencing Guidelines. Pursuant to 18 U.S.C. § 3582(c)(2), Petitioner subsequently filed a motion for reduction of sentence, which this Court denied. On March 11, 2016, Petitioner filed a motion for leave to file a § 2255 petition out of time. The Court granted that motion, citing a potential issue with Johnson v. United States, 135 S.Ct. 2551 (2015). On May 24, 2016, Petitioner filed his initial § 2255 petition. He voluntarily dismissed that petition after the Supreme Court issued Beckles v. United States, 137 S.Ct. 886 (2017). On June 1, 2017, Petitioner filed the § 2255 petition at issue here.

         Standard of Review

         A federal prisoner may challenge a sentence if it “was imposed in violation of the Constitution or laws of the United States . . . or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. To prevail on a § 2255 motion, “the movant must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 2003). The petitioner has the burden of “sustaining [his] contentions by a preponderance of the evidence.” Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

         Analysis

         Petitioner has set forth several arguments in support of his § 2255 motion. At the outset, however, the Court must determine: (1) whether Petitioner's brief is a “second or successive” § 2255 motion, and (2) whether it has been timely filed.

         A. Second or Successive Motion

         Federal law prohibits petitioners from bringing claims in a “second or successive” application for relief under § 2255 if those claims could have been brought in an earlier application. Clark v. U.S., 764 F.3d 653, 657 (6th Cir. 2014) (citing 28 U.S.C. §§ 2244, 2254-55(h)). Before a federal prisoner can file a “second or successive” § 2255 motion, the petitioner must move in the Sixth Circuit for an order authorizing the district court to consider the filing. Id. The Government argues that the Court must dismiss this petition because Petitioner's previously filed § 2255 motion was dismissed, and Petitioner failed to obtain authorization from the Sixth Circuit to file his second petition. Petitioner argues that because he voluntarily dismissed his first § 2255 petition, he is entitled to file another without seeking Sixth Circuit approval.

         Upon review, this Court agrees with Petitioner that his motion is not a “second or successive” petition. The Sixth Circuit has held that an initial § 2255 petition is not complete until the petitioner has lost on the merits and exhausted his appellate remedies. Clark, 764 F.3d at 658; see also Blue v. United States of America, 2013 WL 5298348 (N.D. Ohio Sept. 20, 2013) (One exception to the ban on “second and successive” petitions exists when a petitioner raises claims in an initial petition which are dismissed without prejudice). Petitioner filed a motion to voluntarily dismiss his first § 2255 petition without prejudice on March 31, 2017, and this Court granted that motion. Therefore, the initial § 2255 petition was not considered on the merits. As such, the instant petition is not “second or successive, ” and Petitioner need not seek authorization from the Sixth Circuit in order to proceed.

         B. Statute of Limitations

         Petitioner argues, in part, that he is entitled to relief under Mathis v. United States,136 S.Ct. 2243 (2016) because California's burglary law is broader than those of “generic” burglary statutes, and that his conviction under that law could not constitutionally give rise to a sentence enhancement. The Government argues that Petitioner's motion is untimely because he filed it more than one year after the ...


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