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United States v. Hashi

United States District Court, W.D. Louisiana, Alexandria Division

July 29, 2019

UNITED STATES OF AMERICA
v.
ISAAC ABDI HASHI

          DRELL JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge

         Before 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.

         I. Background

         Hashi 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).

         The 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).

         The 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).

         On June 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). Id.

         The 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. 55).

         II. Law and Analysis

         A. Hashi's § 2255 motion is untimely because he does not qualify for relief under Johnson v. United States.

         A 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 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 ...

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