United States v. Burdick

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH, Chief Judge.

         This matter is before the Court on a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 32, “Second Motion to Vacate”). The Government has filed an objection to the Motion to Vacate (ECF No. 34, “Objection”). For the reasons stated herein, the Second Motion to Vacate is DENIED.

         I. Background^[1]

         On August 6, 2012, Burdick entered a guilty plea to a single count of robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951. He was sentenced on October 22, 2012, to a term of 151 months of incarceration, followed by three years of supervised release. Judgment entered on October 24, 2012. Burdick did not appeal.

         On June 24, 2016, Burdick, represented by counsel, filed a motion to vacate sentence based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (ECF No. 24, “First Motion to Vacate”). By Order dated July 5, 2016 (ECF No. 26, “Order”), the Court held the matter in abeyance pending clarification of the applicability of Johnson to the United States Sentencing Guidelines (“U.S.S.G.”). After the Supreme Court issued its decision in Beckles v. United States, 137 S.Ct. 886, 890 (2017) (holding that the U.S.S.G. were not subject to a vagueness challenge under Johnson), Burdick moved to dismiss the First Motion to Vacate. The Court granted the motion to dismiss by text order on April 25, 2017.

         Burdick subsequently filed a letter motion for leave to file a new motion to vacate pursuant to § 2255. The Court granted Burdick's motion for leave on February 21, 2019, and Burdick filed the Second Motion to Vacate on April 2, 2019. On April 9, 2019, the Government filed its Objection to the Second Motion to Vacate.

         II. Law

         A. Standard of Review

         Section 2255 provides in relevant part:

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). Generally, the grounds justifying relief under 28 U.S.C. § 2255(a) are limited. A court may grant relief pursuant to § 2255 in instances where the court finds a lack of jurisdiction, a constitutional error, or a fundamental error of law. United States v. Addonizio, 442 U.S. 178, 185 (1979). “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.” Id. (internal quotation marks omitted). Moreover, § 2255 is not a substitute for direct appeal. Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994) (citing cases).

         B. Timeliness

         The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996 “imposed significant new constraints on proceedings under section 2255. Some of these constraints were temporal; for example, AEDPA established a one-year statute of limitations for filing a section 2255 petition.” Trenkler v. United States, 536 F.3d 85, 96 (1^st Cir. 2008) (citing 28 U.S.C. § 2255(f)) (internal footnote omitted). Section 2255(f) states:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run ...