United States District Court, D. Rhode Island
USA, Plaintiff: Sandra R. Hebert, LEAD ATTORNEY, Milind M
Shah, U.S. Attorney's Office, Providence, RI.
Lisi, United States District Judge.
Jason Collymore (" Petitioner" or "
Collymore" ), proceeding pro se, has filed a
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Doc. #103)
(" Motion" ). The Government has filed a response
in opposition (Doc. #104) (" Opposition" ), to
which Collymore filed a " Traverse" (Doc. #105)
(" Reply" ). No hearing is necessary.
BACKGROUND AND TRAVEL
21, 2011, Collymore pled guilty to one count of manufacturing
marijuana, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(D) (Count III), and one count of possessing a firearm
in furtherance of drug trafficking, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (Count IV). He was sentenced on
October 4, 2011, to 144 months incarceration, consecutive
terms of 60 months for Count III and 84 months for Count IV.
In addition, he received 3 years and 5 years of supervised
release on Counts III and IV, respectively, to run
concurrently. Judgment entered on October 11, 2011. Collymore
did not appeal his conviction or sentence.
filed the instant Motion on June 17, 2014.
Section 2255 and AEDPA
the grounds justifying relief under 28 U.S.C. § 2255 are
limited. A court may grant such relief only if it finds a
lack of jurisdiction, a constitutional error, or a
fundamental error of law. See United States v.
Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d
805 (1979)(" [A]n error of law does not provide a basis
for collateral attack unless the claimed constituted a
fundamental defect which inherently results in a complete
miscarriage of justice." )(internal quotation marks
2255 states that:
(a) A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released 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, may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). In 1996, Congress enacted the
Anti-Terrorism and Effective Death Penalty Act ("
AEDPA" ), which " imposed significant new
constraints on proceedings under section 2255." Trenkler
v. United States, 536 F.3d 85, 96 (1st Cir. 2008)(footnote
omitted). " Some of these constraints were temporal; for
example, AEDPA established a one-year statute of limitations
for filing a section 2255 petition." Id.
(citing 28 U.S.C. § 2255(f)). Others were numerical,
requiring a petitioner to obtain preclearance from the
circuit court before filing a second or successive petition.
Id. (citing 28 U.S.C. § 2255(h)).
argues that his sentence was imposed in violation of the rule
of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), as extended by Alleyne v.
United States, __ U.S. __, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013). Motion at 4.
Petitioner contends under the Rule of Apprendi as extended by
Alleyne, the sentence was imposed in violation [of] the Sixth
Amendment. He contends that because any fact, by law, that
increases the prescribe[d] sentencing range for the offense
of conviction is an ingredient of the offense, Alleyne
requires a jury, rather than the court, find those facts.
Contrary to the judgment of this Court, the Sixth Amendment
commands this court vacate the judgment and set the matter
for resentencing consistent with the Rule of Apprendi as
extended by Alleyne.
Id. at 5; see also id. at 4 (" As the
case proceeded to sentencing, the court found additional
facts necessary to trigger a sentence in excess of the facts
admitted by Petitioner, or submitted to a jury and proved
beyond a reasonable doubt." )(citation omitted). He
asserts that his Motion is timely, as it was placed in the
institutional mailbox within the time limits prescribed by
the AEDPA . Id. at 13. Petitioner asks that his
sentence be vacated and that he be resentenced, id.
at 5, 14, or, ...