United States District Court, W.D. Louisiana, Lake Charles Division
before the court are three pro se motions filed by
Robin Pinkney: a Motion for Appropriate Relief (Rec. Doc.
232), a Motion Pursuant to Federal Rule of Civil Procedure 15
(Rec. Doc. 240), and a Motion to Grant Relief under 28 U.S.C.
§ 2255 (Rec. Doc. 241). For the following reasons, the
motions will be denied.
FACTS & PROCEDURAL HISTORY
November 21, 2008, the court entered a judgment, (Rec. Doc.
141), against Pinkney sentencing him to 240 months of
imprisonment and 10 years of supervised relief after he
pleaded guilty to one count of Conspiracy to Possess with
Intent to Distribute Cocaine Base in violation of 21 U.S.C.
§ 846, (Rec. Docs. 103, 104). This sentence was the
statutory minimum sentence. Pinkney did not receive any
enhancement points under U.S.S.G. § 4B1.1, and he was
not considered a career offender under the guidelines.
Shortly after the judgment was entered, Pinkney filed a
Motion to Modify Sentence through his attorney (Rec. Doc.
142), which was denied by the district court (Rec. Doc. 145).
Pinkney did not file an appeal from the district court's
January 2012, Pinkney filed a. pro se Motion for
Retroactive Application of Sentencing Guidelines to Crack
Cocaine Offenses. (Rec. Doc. 185). The court denied this
motion in March 2012. (Rec. Doc. 189). In 2015, Pinkney filed
two pro se motions: (1) a Motion to Correct
Defendant's Supervised Release (Rec. Doc. 217), and (2) a
Motion for Modification or Reduction of Sentence Pursuant to
Amendment 782 (Rec. Doc. 218). Both motions were denied.
(Rec. Docs. 221, 229).
September 28, 2016, Pinkney filed a '"Motion for
Appropriate Relief [:] Sentence Reduction Pursuant to
U.S.S.G. §3B1.2 Amendment 794[;] Appointment of Counsel
under 3006(a)[;] 28 U.S.C. § 2255." (Rec. Doc.
232). Because the petitioner is pro se,
court will consider this as both a petition for habeas relief
under 28 U.S.C. § 2255 and a motion for sentence
reduction under 18 U.S.C. § 3582(c)(2). On December 12,
2016, he made two additional pro se filings: (1)
"Motion Pursuant to Fed. R.C.P. 15 [J §2255 Motion
to Relate to Date of Origin, U.S.S.G. § 3B1.2 Amendment,
" [sic] (Rec. Doc. 240), and (2) "Motion to Grant
Relief under 28 U.S.C. § 2255, " (Rec. Doc. 241).
Liberally construing these filings, the court finds that they
are amendments to the original Motion for Appropriate Relief,
and they will be considered for both his § 2255 argument
and his § 3582(c)(2) argument.
original Motion for Appropriate Relief, he argued that his
sentence should be reduced under the Amendment 794 which
became effective in 2015 because he had a minor role in the
conspiracy. (Rec. Doc. 232). In his first amendment, Pinkney
argues that the district court improperly determined that he
was a career offender. (Rec. Doc. 240). In his second
amendment, Pinkney clarifies that he is also bringing (1) an
ineffective assistance of counsel claim, and (2) a
prosecutorial misconduct claim. (Rec. Docs. 241). He
reiterates these arguments in his reply to the
government's opposition (Rec. Doc. 245).
it is viewed as a petition for habeas relief under 28 U.S.C.
§ 2255 or a motion for sentence reduction under 18
U.S.C. § 3582(c)(2), Pinkney's Motion for Relief,
including the amendments (Rec. Docs. 232, 240, 241), fails.
28 U.S.C. § 2255
§ 2255 claims fail because they are time-barred. Under
28 U.S.C. § 2255, the defendant must file a petition
with a one-year period from "the date on which the
judgment of conviction becomes final, " 28 U.S.C. §
2255(f)(1), or "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). "[W]hen a federal
prisoner fails to file a notice of appeal from his conviction
..., the conviction becomes final for purposes of § 2255
upon the expiration of the ... period for filing a direct
appeal." United States v. Plascencia, 537 F.3d
385, 388 (5th Cir. 2008). Under the rules that were
applicable at the time, Pinkney had ten business days from
the entry of his judgment of conviction to file a direct
appeal. Fed. R. App. P. 4(b)(1) (2008). Pinkney's
judgment of conviction was entered on November 21, 2008,
which gave him until December 8, 2008, to file an appeal to
the Fifth Circuit. Pinkney did not file a direct appeal.
Therefore, his judgment of conviction became final on
December 9, 2008, and Pinkney's one-year period for
filing a § 2255 petition expired on December 9, 2009.
The current petition, which was filed on September 28, 2016,
and its amendments are time-barred under 28 U.S.C. §
petition also does not meet the requirements of §
2255(f)(3) because it is not based on a new rule that is
retroactive on collateral review. In one of his amendments,
Pinkney argues that he was sentenced as a career offender
under U.S.S.G. § 4B1.1 in violation of Johnson v.
United States, 135 S.Ct. 2551 (2015). However, Pinkney
was not sentenced as a career offender. Therefore,
Johnson is inapplicable and cannot be used to
stretch the statute of limitations. Additionally, Pinkney has
not argued that equitable tolling should apply. For these
reasons, to the extent that his motion is a motion for relief
under § 2255, it will be denied as untimely.
18 U.S.C. § 3582
§ 3582 claims fail because the Amendment 794 is not
retroactively applicable. Under 18 U.S.C. § 3582(c)(2),
if "a defendant... has been sentenced to a term of
imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission[, a]
court may reduce the term of imprisonment.. .if such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission." To be consistent
with the Sentencing Commission's policy statements, the
reduction must be consistent with U.S.S.G. § 1B1.10.
United States v. Drath,89 F.3d 216, 218 (5th Cir.
1996). Under U.S.S.G. § 1B1.10, only amendments that are
specifically listed as retroactive in § IB 1.10 can be
retroactively applied to a final sentence. Id.
"Thus, if an amendment is not specifically listed in
U.S.S.G. § 1B1.1O([d]), a reduction of sentence under
§ 3582(c)(2) is not consistent with the Sentencing