United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
the Court is a Motion to Vacate, Set Aside, or Correct
Sentence (Doc. 47) under 28 U.S.C. § 2255, filed by
Petitioner Isaac Abdi Hashi (“Hashi”). Because
the United States Sentencing Guidelines
(“U.S.S.G.”) are not subject to challenges for
vagueness, Hashi's § 2255 motion (Doc. 47) should be
DENIED as untimely.
was indicted by a federal grand jury on three counts of
assaulting, resisting, or impeding a federal officer in
violation of 18 U.S.C. §§111(a)(1) and (b), and two
counts of possessing contraband in a federal prison in
violation of 18 U.S.C. §1791(a)(2). (Doc. 1). Hashi
entered a plea of guilty to Count 1 - assaulting, resisting,
or impeding a federal officer. (Docs. 23, 24). Counts 2-5
were dismissed at sentencing. (Doc. 31).
Court determined Hashi was a career offender based on prior
convictions for the federal crime of assault on a federal
officer. (Doc. 47, p. 5; PSR, ¶ 42). The Court upwardly
departed from the advisory guideline range and sentenced
Hashi to imprisonment for 216 months to run consecutively
with the sentence Hashi was currently serving. (Doc. 29, p.
1; Doc. 31, p. 2).
United States Fifth Circuit Court of Appeals affirmed.
United States v. Hashi, 539 Fed.Appx. 634 (5th Cir.
2013). Mandate issued on October 4, 2013. (Doc. 46, p. 4).
27, 2016, through the Federal Public Defender, Hashi filed
this Motion to Vacate under 28 U.S.C. § 2255, asserting
he is entitled to resentencing under Johnson v. United
States, 135 S.Ct. 2551 (2015). (Doc. 47, pp. 2-9). In
his sole request for relief, Hashi contends he was denied his
right to due process of law when his sentence was enhanced by
a prior conviction that was only cognizable as a crime of
violence under U.S.S.G. § 4B1.2(a)(2)'s residual
clause. Id. Hashi argues the residual clause of
U.S.S.G. § 4B1.2(a)(2) is identical to that declared
unconstitutionally vague in Johnson, 135 S.Ct. 2551,
and made retroactive to cases on collateral review in
Welch v. United States, 136 S.Ct. 1257 (2016).
Court granted the United States of America's (the
“Government's”) Motion to Stay (Doc. 50),
pending a ruling in Beckles v. United States, 137
S.Ct. 886 (2017). (Doc. 51). Beckles is now
resolved. The Federal Public Defender has withdrawn. (Docs.
53, 54). Hashi now proceeds pro se. The Government
opposes Hashi's § 2255 motion as untimely. (Doc.
Law and Analysis
Hashi's § 2255 motion is untimely because he
does not qualify for relief under Johnson v. United
prisoner may seek to vacate, set aside, or correct his
sentence on “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.” 28 U.S.C. § 2255(a). The
statute of limitations for such motions is one-year from the
(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 ...