Farley v. United States of America

Middle District of Florida, flmd-8:2017-cv-00867

ORDER: Petitioner's Motion for Reconsideration {{6}} is GRANTED IN PART to the extent that the Court clarifies why Petitioner's arguments under Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016), do not entitle him to relief. Signed by Judge James S. Moody, Jr. on 6/14/2017. (LN)

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PageID 61 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CEDRIC FARLEY, Petitioner, v. Case No: 8:17-cv-867-T-30MAP Crim. Case No: 8:11-cr-55-T-30MAP UNITED STATES OF AMERICA, Respondent. ORDER THIS CAUSE comes before the Court on Petitioner's Motion for Reconsideration (CV Doc. 6). In the Motion, Petitioner asks the Court to reconsider its Order (CV Doc. 3) denying Petitioner's section 2255 motion because (1) the Court failed to address Petitioner's claims under Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016); and (2) failed to cite to portions of the record demonstrating Petitioner was offered an opportunity to object at sentencing. The Court concludes Petitioner's Motion should be granted in part to address his Mathis argument, but the Court declines to address Petitioner's second argument. In his section 2255 motion and memorandum of law (CV Docs. 1 and 2), Petitioner argues Mathis applies to retroactively to cases on collateral review. Petitioner admits, though, that Mathis did not announce a new rule of law. With this the Court agrees. All of that misses the point, though, because Petitioner was not granted the right to bring a second or successive section 2255 motion based on Mathis. Rather, the Eleventh PageID 62 Circuit Court of Appeals granted Petitioner permission to file a second or successive section 2255 motion based on Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015). (CR Doc. 37). This means that in order for Petitioner's Mathis claim to be subject to collateral review, he had to first state a viable claim under Johnson. He did not. (CV Doc. 3). Thus, this Court did not address his arguments under Mathis in its prior order. But assuming Petitioner did not have to first make out a successful claim under Johnson, the Court concludes Petitioner would still not be entitled to relief. First, a claim brought solely under Mathis in a section 2255 proceeding would be untimely because—as Petitioner noted—Mathis did not announce a new rule. United States v. Taylor, No. 16- 6223, 2016 WL 7093905, at *4 (10th Cir. Dec. 6, 2016) (holding, "Because Mathis did not announce a new rule, Mr. Taylor cannot rely on it in a § 2255 petition filed nearly fifteen years after the judgment in his criminal case became final. Mr. Taylor's petition is time- barred."); Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016); In re Lott, 838 F.3d 522, 523 (5th Cir. 2016); Smith v. United States, No. CR608-030, 2017 WL 1745057, at *1 (S.D. Ga. May 3, 2017); Hernandez V. United States, No. A-09-CR-513(1) LY, 2017 WL 2126877, at *1 (W.D. Tex. May 16, 2017). Second, because Mathis did not announce a new rule, any argument based solely on Mathis would have been procedurally defaulted when Petitioner did not raise it on direct appeal or in his prior section 2255 motion. Garcia v. United States, No. 8:06-CR-111-T-30TGW, 2017 WL 1050125, at *2 (M.D. Fla. Mar. 20, 2017). As such, the Court would have denied Petitioner's section 2255 motion (CV Doc. 1) even if the Court considered Petitioner's Mathis arguments. 2 PageID 63 Accordingly, it is ORDERED AND ADJUDGED that: 1. Petitioner's Motion for Reconsideration (CV Doc. 6) is GRANTED IN PART to the extent that the Court clarifies why Petitioner's arguments under Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016), do not entitle him to relief. DONE and ORDERED in Tampa, Florida, this 14th day of June, 2017. Copies furnished to: Counsel/Parties of Record 3