United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE Judge
MAURICE HICKS, JR., CHIEF JUDGE.
the Court is a “Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody” (Record Document 194) filed by Petitioner
Gregory Brian Hearn (“Hearn”). Hearn argues that
his sentence was increased because he was deemed a
“career offender” under United States Sentencing
Guideline (“U.S.S.G.”) § 4B1.1(a). See
id. He maintains this enhancement at sentencing was
improper under Mathis v. United States, 136 S.Ct.
2243 (2016) and United States v. Hinkle, 832 F.3d
569 (5th Cir. 2016). See id. He asks the Court to
vacate his sentence and resentence him without the career
offender enhancement under U.S.S.G. § 4B1.1(a). See
Government answered Hearn's motion. See Record
Document 198. The Government noted that prior to Hearn's
guilty plea, it filed a Notice of Prior Narcotics Conviction
Pursuant to 21 U.S.C. § Section 851. See Record
Document 109. The information was based on Hearn's
November 13, 2003 Texas conviction for manufacture or
delivery of a controlled substance, a felony drug offense.
See id. This notice caused Hearn to be subject to a
mandatory minimum of 20 years imprisonment. While his
guideline range was 140 to 175 months, Hearn was sentenced to
240 months imprisonment pursuant to the Section 851 notice
and the enhanced sentence under 21 U.S.C. §
841(b)(1)(A)(iii). See Record Documents 109, 135.
Hearn was not sentenced or enhanced pursuant to the Armed
Career Criminal Act (“ACCA”) or the career
offender enhancement under U.S.S.G. § 4B1.1(a).
sentence was imposed on April 2, 2008. See Record
Document 134. He timely appealed and his conviction was
affirmed by the United States Court of Appeals for the Fifth
Circuit on March 11, 2009. See Record Document 176.
Hearn did not petition for a writ of certiorari. Thus, his
conviction became final 90 days later. Hearn did not file the
instant Section 2255 motion until September 9, 2016.
statute of limitations for a Section 2255 motion is one year.
See 28 U.S.C. § 2255(f). The one year period
begins to run from the latest of four events:
(1) the date on which the judgment of conviction becomes
(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 such
(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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
Id. The Government challenges the timeliness of
Hearn's motion, as it was filed more than one year after
his conviction became final. Hearn argues his Section 2255
motion is timely under Section 2255(f)(3) & (4). The
Court will assume for the limited purpose of the instant
Memorandum Order that Hearn's Section 2255 motion is
Government also argues that Hearn cannot prevail on the
merits of his motion because Mathis and
Hinkle apply to enhancements made under the ACCA and
18 U.S.C. § 924(e), not enhancements for prior felony
drug offenses under 21 U.S.C. §§ 841(b)(1)(A)(iii)
and 851. This Court finds guidance in Collier v. United
States, No. 1:12CV376, 2017 WL 3879096 (E.D. Tex. July
13, 2017), Report and Recommendation adopted, No.
1:12-CV-376, 2017 WL 3903018 (E.D. Tex. Sept. 5, 2017),
wherein the court stated:
In Mathis, the Supreme Court held that when
determining whether a prior conviction qualifies as a
predicate offense under the ACCA, a sentencing court may
subdivide the statute which formed the basis for the prior
conviction only if the statute contains multiple elements
constituting separate crimes rather than simply multiple
means of committing the same offense. United States v.
Wright, --- Fed.Appx. __, 2017 WL 1032310 (5th Cir. Mar.
15, 2017). In Hinkle, the United States Court of
Appeals for the Fifth Circuit held that a conviction pursuant
to § 481.112(a) of the Texas Health and Safety Code does
not qualify as a “controlled substance offense”
for the purpose of § 4B1.1 of the United States
. . . Mathis and Hinkle do not apply to
movant's case. Movant was not sentenced under the ACCA,
making . . . Mathis inapplicable. Further, the Fifth
Circuit's decision in Hinkle examined the
definition of “controlled substance offense” as
set forth in § 4B1.1 of the Guidelines, rather than the
definition of “felony drug offense” set forth in
21 U.S.C. § 802(44). As the definition for “felony
drug offense” set forth in Section 802(44) is the
definition applicable to movant's case, and is different
from the definition of “controlled substance
offense” contained in § 4B1.1, movant's
reliance on Hinkle is ...