United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
Aaron Polster, United States District Judge.
the Court is the Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 filed by Patrick
Young on May 29, 2019 (“§ 2255 Motion” or
“Motion”). Doc #: 42. Young contends that his
conviction for brandishing a firearm during a crime of
violence under 18 U.S.C. § 924(c) is no longer valid in
light of the Supreme Court's decision in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018). On June 27, 2019, the
Government filed a Motion to Dismiss contending that
Young's § 2255 Motion is time-barred (“Motion
to Dismiss”). Doc #: 43.
Court has reviewed the § 2255 Motion and the
Government's responsive Motion to Dismiss. Because the
Government's Motion to Dismiss was filed on June 27,
2019, Patrick Young had until July 30, 2019 to file a
response brief. It is now September 4, 2019, and Young has
failed to file an opposition brief or request an extension of
time to file one. For the following reasons, the Court
GRANTS the Motion to Dismiss, Doc #: 43, and
DISMISSES the § 2255 Motion, Doc #: 42.
January 12, 2016, a federal grand jury returned an indictment
charging Patrick Young with Conspiracy in violation of 18
U.S.C. §§ 1951(a) and 2 (Count 1), Hobbs Act
Robbery in violation of 18 U.S.C. §§ 1951(a) and
(2) (Counts 2, 3, 5 and 7), and Brandishing a Firearm During
a Crime of Violence in violation of 18 U.S.C. §§
924(c)(1)(A)(ii) and 2 (Counts 4 and 6). Doc #: 1. Young pled
guilty to all counts pursuant to a plea agreement. Doc #: 17.
In the Plea Agreement, Young waived his constitutional rights
with the following exceptions. Doc #: 18. He reserved the
right to appeal any punishment in excess of the statutory
maximum, or any sentence to the extent it exceeded the
maximum of the applicable range under the advisory Sentencing
Guidelines in accordance with the stipulation contained in
the Plea Agreement. Id. The Plea Agreement did not
bar Young from seeking an appeal or collateral attack with
respect to claims of ineffective assistance of counsel.
August 31, 2016, Young was sentenced to 188 months
imprisonment on all counts to run concurrently, with credit
for time served. On May 4, 2017, the Sixth Circuit affirmed
his conviction and sentence. The deadline for filing a
petition for writ of certiorari in the United States Supreme
Court expired on August 2, 2017 at which time his judgment
and conviction became final.
Young's timely petition would have been due by August 2,
2018, one year after his judgment and conviction became
final. But on May 29, 2019, Young filed the instant §
2255 Motion arguing that his conviction under 18 U.S.C.
§ 924(c) for brandishing a firearm during a crime of
violence is no longer valid in light of the Supreme
Court's decision in Sessions v. Dimaya, 138
S.Ct. 1204 (2018). Dimaya recognized a new rule of
law that applied retroactively to cases on collateral review,
on April 17, 2018.
applicable limitations statute, 18 U.S.C. § 2255(f)(3),
(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
latest of -
(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[.]
Id. As Dimaya was issued on April 17, 2018,
the one-year period for Young to file his § 2255 Motion
expired on April 17, 2019.
Certificate of Service, Young states that he mailed his
§ 2255 Motion on February 25, 2019, and he contends he
was in transit when he ...