U.S. v. Nichols

• Decision Date: 15 December 2000
• Docket Number: No. 1:92-CR-01.,1:92-CR-01.
• Citation: 126 F.Supp.2d 479
• Parties: UNITED STATES of America, Plaintiff, v. Wiley T. NICHOLS, Jr., Defendant.
• Court: U.S. District Court — Western District of Michigan

126 F.Supp.2d 479

UNITED STATES of America, Plaintiff, v. Wiley T. NICHOLS, Jr., Defendant.

No. 1:92-CR-01.

United States District Court, W.D. Michigan, Southern Division.

December 15, 2000.

Donald Daniels, U.S. Attorney's Office, Grand Rapids, MI, for U.S.

Wiley T. Nichols, Leavenworth, KS, Pro se.

OPINION

ENSLEN, Chief Judge.

This matter is before the Court on Defendant Wiley T. Nichols, Jr.'s ("Nichols") Motion for Correction of Sentence pursuant to 28 U.S.C. § 2255. The Court denies his Motion.

I. Introduction

On January 8, 1992, the United States Attorney filed a single count Indictment in the Western District of Michigan charging Nichols with being a felon in possession of a firearm in violation of 18 U.S.C § 922(g)(1). The Indictment also charged that Nichols should receive an enhanced sentence under 18 U.S.C. § 924(e) because he had at least three prior convictions for violent felonies: two breaking and entering convictions under Michigan Compiled Laws § 750.110, and an armed robbery conviction under Michigan Compiled Laws § 750.529. On January 17, 1992, Nichols, accompanied by counsel, appeared before this Court and pled guilty to Count One of the Indictment. Nichols filed no direct appeal of his case and filed no Motion pursuant to § 2255 at that time. On July 6, 2000, Nichols filed his Motion pursuant to § 2255. The government filed a response on August 23, 2000. Without leave of this Court, Nichols filed a traverse on September 6, 2000.

II. Time Limit under § 2255

In his present Motion, Nichols argues that he received an improper sentence from this Court because one of the requisite elements for his enhanced sentence under 18 U.S.C. § 924(e)(1) did not exist; namely, he did not have three prior violent felony convictions.¹ Nichols asserts that five of the six prior felony convictions used by the Government to enhance his sentence were not violent felonies for purposes of 18 U.S.C. § 924(e)(1)(B), and therefore his sentence for violation of 18 U.S.C. § 922(g) should not have been enhanced pursuant to 18 U.S.C. § 924(e)(1). Second, he asserts that under Michigan law, his rights were restored as to three of the prior convictions, and that this prohibits the Government from using these offenses as enhancements pursuant to 18 U.S.C. § 921(a)(20).

Without addressing Nichols' arguments in his Motion for Correction, the Court finds that his Motion fails because it is time-barred under 28 U.S.C. § 2255. Section 2255 provides the following:

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

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by governmental action;

(3) 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;

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

The Sixth Circuit Court of Appeals has stated that a one-year grace period be applied to motions under 28 U.S.C. § 2255 for all cases which became final before enactment of this time limitation. The grace period started on April 24, 1996, see Ellis v. United States, 1998 WL 777995 (6th Cir. Oct. 21, 1998), United States v. Flores, 135 F.3d 1000, 1006-07 (5th Cir. 1998), and ended April 24, 1997. Hyatt v. United States, 207 F.3d 831, 832 (6th Cir. 2000); Rogers v. United States, 180 F.3d 349, 355 (1st Cir.1999).

Nichols pled guilty to being a felon in possession of a firearm on January 17, 1992. Judgment in his case was entered on April 10, 1992. Nichols filed no direct appeal, and the Judgment became final on April 21, 1992. Nichols did not file his Motion for Correction until July 6, 2000. This filing date puts the timing of his Motion well beyond the 1-year grace period adopted by the Sixth Circuit Court of Appeals for Motions under 28 U.S.C. § 2255. Therefore, Nichols' Motion is time-barred under the 1-year grace period applied to 28 U.S.C. § 2255 motions by the Sixth Circuit Court of Appeals.

Notwithstanding this critical timing defect to his Motion, Nichols' Motion fails to meet any of the four criteria set forth in the statute. As indicated above, Nichols is time-barred from now making this Motion because he did not file it within the 1-year time limitation. In his original Motion, Nichols alleges no government-created impediment that violated the Constitution or laws of the United States and prevented him from filing the Motion in a timely manner. In his Traverse, Nichols argues that he did have an impediment to filing this present Motion under subsection (2), and that the recent removal of this impediment makes his Motion timely. Nichols maintains in his Traverse, for the first time, that because he was challenging one of these state-law convictions in the state system, and did not receive a final order on that conviction until July 27, 1999, this means his § 2255 Motion is timely. Nichols cites to Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), Rust v. Zent, 17 F.3d 155 (6th Cir.1994), and Rogers v. Howes, 144 F.3d 990 (6th Cir.1998), in support of this proposition. Nichols argument is mistaken and his cites are off the mark.

Nichols has failed to point out how § 2255(2) applies to his case. Simply because Nichols waited a significant period of time before challenging his state-court conviction does not mean that there was a governmentally created impediment in violation of the Constitution or laws of the United States that prevented Nichols from making a timely motion under § 2255. Nothing the government did, either at the state or federal level, caused Nichols to delay in challenging his state-court conviction. Nothing done by the government violated the Constitution or any laws of the United States. Therefore, subsection (2) simply does not apply to this case.

Contrary to Nichols' argument, the dicta in Custis does not support his position that this was a government-created impediment that prevented him from filing this Motion. The Supreme Court in Custis held that "§ 924(e) does not permit [a defendant] to use the federal sentencing forum to gain review of his state convictions." Custis, 511 U.S. at 487, 114 S.Ct. 1732. The Supreme Court went on to say in dicta that a defendant, "who was still `in custody' for purposes of his state conviction at the time of his federal sentencing under § 924(e), may attack his state sentences in [the state court] or through federal habeas corpus. If [the defendant] is successful in attacking these state sentences, he may then apply for reopening of any federal sentences enhanced by the state sentences." Id. Nichols was not in state custody when attacking his state conviction, and he was not successful in that attack. These two facts mean that the dicta in Custis provides no support for his argument.

Nichols' cites to Rust and Rogers are equally unavailing in his case. Both cases dealt with the exhaustion of state-law remedies under 28 U.S.C. § 2254, and not governmentally created impediments for filing § 2255 motions. They provide no support for the proposition that his late appeal in the Michigan court system is somehow an impediment, the removal of which would allow him to file a late § 2255 motion under subsection (2). These cases simply do not implicate subsection (2), and do not justify Nichols' untimely Motion.

Neither in his Motion nor in his Traverse does Nichols assert a newly recognized right by the United States Supreme Court made retroactively applicable to his case. Finally, Nichols alleges no new facts in his case that could not have been discovered within the 1-year limitation period. Because Nichols' Motion meets none of the requisite statutory criteria that might have allowed him to file this Motion more than eight years after the final Judgment in his case, his Motion is time-barred under 28 U.S.C. § 2255.

III. Violent Felonies under 18 U.S.C. § 924(e)(2)

Putting aside the fact that Nichols' Motion is time-barred, his Motion fails with regard to the issue of how many violent felonies he had at the time of his offense under the statute. Nichols argues that because five of his six prior convictions were not within the definition of a "violent felony" as defined by 18 U.S.C. § 924(e)(2)(B)(i) or (ii), he should not have been sentenced to the mandatory fifteen years pursuant to 18 U.S.C. § 924(e)(1).

Section 924(e)(2)(B) provides the following:

the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year ... that —

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

In determining whether a predicate offense is a violent felony warranting an enhancement for sentencing purposes under § 924(e), courts should use a "categorical approach." Taylor v. U.S., 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Houston, 187 F.3d 593, 594 (6th Cir.1999). The "categorical approach" means that a court "should not use the actual facts of an individual's prior conviction but should instead look to the statutory definition of the crime charged." Houston, 187 F.3d at 594.

Nichols' first offense, breaking and entering a business, as defined by Michigan law,² falls within the ambit of "burglary." United States v. Fish, 928 F.2d 185, 188 (6th Cir.1991) ("A conviction under the Michigan statute for breaking and...