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Collymore v. United States

United States District Court, D. Rhode Island

December 7, 2015

JASON COLLYMORE,
v.
UNITED STATES OF AMERICA

          For USA, Plaintiff: Sandra R. Hebert, LEAD ATTORNEY, Milind M Shah, U.S. Attorney's Office, Providence, RI.

         MEMORANDUM AND ORDER

         Mary M. Lisi, United States District Judge.

         Petitioner 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.

         FACTUAL BACKGROUND AND TRAVEL

         On June 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).[1] 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.

         Collymore filed the instant Motion on June 17, 2014.[2]

         DISCUSSION

         I. Section 2255 and AEDPA

         Generally, 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 omitted).

         Section 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)).

         II. Analysis

         Collymore 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.[3] Petitioner asks that his sentence be vacated and that he be resentenced, id. at 5, 14, or, ...


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