United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
MARY M. LISI UNITED STATES DISTRICT JUDGE
Petitioner Stephfon Cover (“Petitioner” or “Cover”), 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. #98) (“Motion”). The Government has filed a response in opposition (Doc. #100) (“Opposition”), to which Cover filed a reply brief (Doc. #101). No hearing is necessary.
FACTUAL BACKGROUND AND TRAVEL
On November 2, 2009, after a bench trial, Cover was found guilty of conspiracy to possess with intent to distribute five grams or more of cocaine base (Count I); and distribution of five grams or more of cocaine base on August 21, 2008, and aiding and abetting the August 21, 2008, distribution (Count IV). He was sentenced to a total term of imprisonment of 210 months as to Counts I and IV, to be served concurrently. In addition, Cover was sentenced to 8 years of supervised release for each count, also to be served concurrently, upon release from imprisonment. Judgment entered on April 30, 2010.
Cover appealed the judgment of conviction to the Court of Appeals for the First Circuit on May 6, 2010. The First Circuit denied the appeal, and on July 15, 2011, its Mandate issued. Cover filed a petition for writ of certiorari in the United States Supreme Court, which was denied on October 17, 2011.
Cover filed the instant Motion on February 13, 2015.
Cover presents one ground for relief for this Court’s consideration, that he is actually innocent of the aiding and abetting conviction. Motion at 5. The Government responds that: (1) the Petition is procedurally untimely and; and (2) the Petition is substantively without merit. Objection at 1. Because the timeliness issue is dispositive of the Motion, the Court need not address the Government’s substantive argument.
In general, a one-year period of limitation applies to motions filed pursuant to § 2255. See 28 U.S.C. § 2255(f)(1). Cover, however, relies on an exception which provides that a § 2255 motion is timely if filed within a year of “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 ....” 28 U.S.C. § 2255(f)(3). He argues that his Motion is timely because it was filed within a year of the subsequent decision of the Supreme Court in Rosemond v. United States, U.S., 134 S.Ct. 1240 (2014). Motion at 11.
In Rosemond, the Supreme Court stated that “a person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense’s commission.” Rosemond, 134 S.Ct. 1240 at 1248; see also id. at 1243 (addressing the issue of aiding and abetting in the context of a charge of using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime and holding that in order for the Government to make its case it must prove the defendant actively participated in the underlying violent or drug trafficking crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.).
The Supreme Court in Rosemond addressed aiding and abetting, not conspiracy. Rosemond, therefore, does not does not apply to Cover’s Count I conspiracy conviction.
Moreover, Rosemond is not retroactively applicable to Cover’s conviction for aiding and abetting in Count IV. In Dodd v. United States, 545 U.S. 353 (2005), the Supreme Court emphasized that “¶ (6)(3)’s date-‘the date on which the right asserted was initially recognized by the Supreme Court’-does not apply at all if the conditions in the second clause-the right ‘has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review’-have not been satisfied.” Id. at 358 (quoting 28 U.S.C. § 2255(f)(3); see also id. at 359 (reiterating that federal prisoner “may take advantage of the date in the first clause of ¶ (6)(3) only if the conditions in the second clause are met”).
The Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989), “constitutes a general bar to the retroactive application of newly announced rules of criminal procedure, ” Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003), to criminal cases on collateral review which have become final before the new rule is announced, Teague, 489 U.S. at 310-11. There are two exceptions to the Teague bar:
The first allows retroactive application of new rules that either (a) prohibit criminal punishment for certain types of primary conduct, or (b) forbid the imposition of certain categories of ...