United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
2, 2013, Keith Ruther ("Ruther"), a federal
prisoner, moved this Court to vacate and correct his sentence
pursuant to 28 U.S.C. § 2255. Docket No. 281.
Ruther's initial § 2255 motion was filed pro
se and contended that Ruther had received ineffective
assistance of counsel. On June 16, 2016, the Federal Public
Defender filed a supplement to Ruther's § 2255
motion (Docket No. 379), based on Johnson v. United
States, __ U.S. __, 135 S.Ct. 2551 (2015), in which the
Supreme Court struck down, as unconstitutionally vague, the
residual clause of the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e), the language of
which was identical to the residual clause of the Sentencing
Guidelines, under which Ruther was sentenced. The Federal
Public Defender subsequently moved to withdraw as counsel for
Ruther. Docket No. 384. On June 15, 2017, the Court entered a
Decision and Order granting the Federal Public Defender's
motion to withdraw and denying Ruther's § 2255
motion, including the supplement. Docket No. 388. Ruther has
now filed a second § 2255 motion, dated June 25, 2017,
purportedly based on the Supreme Court's decision in
Mathis v. United States, 136 S.Ct. 2243 (2016).
Docket No. 395. For the reasons set forth below, Ruther's
second § 2255 motion is denied.
Successive Motions under § 2255
threshold matter, the Court notes that Ruther's initial
§ 2255 motion was denied on the merits by this Court.
Thus, the instant motion is a second or successive motion,
and under the provisions of the Antiterrorism and Effective
Death Penalty Act of 1996, "this Court does not have
jurisdiction to address a successive motion without
authorization from the United States Court of Appeals for the
Second Circuit, and is required to transfer such a motion to
the Second Circuit if doing so is in the interest of
justice." Hall v. United States, 2015 WL
4111617, at *2 (S.D.N.Y. June 23, 2015). However, "a
district court need not transfer a successive motion that is
wholly without merit; the court should instead dismiss the
motion if it is clear that the narrow set of factual
predicates for relief on a second or successive section 2255
petition have not been made out." Id. Here, for
the reasons set forth below, the Court finds Ruther's
successive motion wholly without merit and thus finds that
dismissal, and not transfer to the Second Circuit, is the
The Motion is Untimely
to 28 U.S.C. 2255(f) (3), a § 2255 motion based on a new
rule of constitutional law must be filed within one year of
the Supreme Court decision recognizing the right asserted.
Here, Ruther contends that his motion is based upon the
Supreme Court's decision in Mathis, which was
issued on June 23, 2016, in which case he was required to
file his motion no later than June 23, 2017. However,
Ruther's motion is dated June 25, 2017, and was not
mailed until June 26, 2017. (See Docket Nos. 395 at
9, 395-1 at l).
Pursuant to Rule 3 of Section 2255 and the ''prison
mailbox' rule, the relevant filing date for a pro se
prisoner bringing a Section 2255 petition is the date when he
delivers the petition to prison officials for mailing."
Martinez v. United States, 2010 WL 4840085, at *2 n.2
(S.D.N.Y. Nov. 12, 2010). In this case, it is clear that
Ruther delivered his papers to prison officials for mailing
no earlier than June 25, 2017, the date he used to date his
motion. Accordingly, he failed to file the instant motion
within one year of the decision in Mathis, rendering it
Mathis does not Apply Retroactively
assuming Ruther's motion had been timely filed, it would
be without merit because the Supreme Court's decision in
Mathis does not apply retroactively. Accordingly,
Ruther cannot seek relief based on Mathis.
or not a new rule of law announced by the Supreme Court is to
be applied retroactively in criminal cases on habeas review .
. . depends largely on whether the rule is substantive or
procedural." Santana-Madera v. United States,
260 F.3d 133, 138 (2d Cir.2001) . If the newly announced rule
is procedural, it generally does not apply retroactively,
while "new rules of substantive criminal law are
presumptively retroactive." Id. "[N]ew
rules are substantive when they alter, the meaning
of a criminal statute enacted by Congress' such that the
defendant stands convicted for conduct that may no longer be
illegal." Id. (quoting Bousley v. United
States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d
courts that have considered the issue have consistently
determined that Mathis does not apply retroactively
because "the Supreme Court explicitly stated in
Mathis that it was not announcing a new rule and
that its decision was dictated by decades of prior precedent.
..." United States v. Taylor, 672 F. App' x
860, 864 (10th Cir. 2016) (collecting cases); see
also Dawkins v. United States, 829 F.3d 549,
550-51 (7th Cir. 2016) ("Mathis did not
announce such a [new ] rule [of constitutional law]; it is a
case of statutory interpretation.") . "Because
Mathis did not announce a new rule, [Ruther] cannot
rely on it in a § 2255 petition filed . . . after the
judgment in his criminal case became final."
Taylor, 672 F.App'x at 864.