United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE
April 24, 2017, the Court directed Petitioner to show cause
why his § 2255 motion should not be dismissed as
untimely pursuant to 28 U.S.C. § 2255(f) given that
Petitioner filed his motion years after his conviction became
final. See Docket No. 1285. Anticipating this issue,
Petitioner argued in his § 2255 motion that the motion
was timely filed within one year of the date on which the
Supreme Court decided Mathis v. United States, 136
S.Ct. 2243 (2016), the case on which Petitioner's §
2255 motion is based. See 28 U.S.C. §
2253(f)(3) provides that a federal prisoner's § 2255
motion is timely if it is filed within one year of “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.” As the Court noted in its April
24 Order, Petitioner may not rely on § 2255(f)(3)'s
belated accrual date because Mathis “did not
set forth a new rule that has been made retroactive on
collateral review.” Docket No. 1285 at 4.
“Indeed, ” the Court noted,
“Mathis itself made clear that ‘it was
not announcing a new rule and that its decision was dictated
by decades of prior precedent.'” Id.
(quoting Milan v. United States, No.
3:16-CV-1850-D-BK, 2017 WL 535599, at *2 (N.D. Tex. Jan. 18,
response to the Court's April 24 Order does not persuade
the Court that its initial conclusion was incorrect. Much of
Petitioner's response argues that Mathis can be
applied retroactively to cases on collateral review. But even
if that is correct (an issue the Court need not, and does
not, resolve), § 2255(f)(3) requires that a § 2255
motion rely on a “newly recognized” right.
“[A] case announces a new rule if the result was not
dictated by precedent existing at the time the
defendant's conviction became final.” Teague v.
Lane, 489 U.S. 288, 301 (1989) (emphasis in original).
As the Second Circuit recently observed when addressing an
issue almost identical to the one now before the Court,
Mathis did not state a “new rule.”
Instead, the Second Circuit noted, Taylor v. United
States, 495 U.S. 575, 602 (1990), on which
Mathis's holding was based, “set out the
essential rule governing [Armed Career Criminal Act] cases
more than a quarter century ago.'” Washington
v. United States, --- F.3d ---, 2017 WL 2979160, at *2
(2d Cir. July 13, 2017) (quoting Mathis, 136 S.Ct.
2551). Mathis, then, is not a case on
which Petitioner may rely to take advantage of §
2255(f)(3)'s belated accrual date.
Petitioner argues that, if he cannot rely on §
2255(f)(3)'s belated accrual rule, then § 2255(f)(3)
violates the Suspension Clause. See U.S. Const.,
art. I, § 9, cl.
2. See Docket No. 1288
at 11-12. The Second Circuit has been
“unpersuaded” by the same constitutional
challenge to the one-year limitations period imposed on
habeas petitions filed by state prisoners. See Lucidore
v. New York State Div. of Parole, 209 F.3d 107, 113 (2d
Cir. 2000) (quoting Rodriguez v. Artuz, 161 F.3d
763, 764 (2d Cir. 1998) (per curiam)). Petitioner has not
demonstrated why § 2255(f)(3) is any different. In other
words, he has not shown how § 2255(f)(3) “leave[s]
petitioners” who are neither legally nor factually
innocent “with[out] some reasonable opportunity to have
their claims heard on the merits.” Rodridguez v.
Artuz, 990 F.Supp. 275, 282 (S.D.N.Y. 1998) (Sotomayor,
J.), aff'd, 161 F.3d 763, 764 (summarily
affirming “for substantially the reasons stated by the
reasons stated above, Petitioner's § 2255 motion
(Docket No. 1283) is denied. Further, pursuant to 28 U.S.C.
§ 2253(c)(1) and Rule 11(a) of the Rules Governing
Section 2255 Proceedings, the Court declines to issue a
certificate of appealability because Petitioner has not made
a substantial showing of the denial of a constitutional
the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal taken from this decision would not be taken
in good faith. Thus, leave to appeal in forma
pauperis is denied. Petitioner is nonetheless advised
that, should he decide to appeal this Decision and Order,
“Federal Rule of Appellate Procedure 4(a) governs the
time to appeal, ” and “[a] timely notice of
appeal must be filed even” though the Court declined to
issue a certificate of appealability. Section 2255 Rule
Clerk of the Court shall take all steps necessary to close
the parallel civil action, 17-CV-0274-A.
 The Second Circuit's decision in
Washington denied a motion to file a
second-or-successive § 2255 motion pursuant to 28 U.S.C.
§ 2255(h)(2). Section 2255(h)(2) allows a federal
prisoner to file a second-or-successive § 2255 motion
when that motion is based on “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” The requirements of § 2255(h)(2)
are, therefore, different than the requirements of §
2255(f)(3). Unlike § 2255(f)(3), § 2255(h)(2)
requires that a new rule be a “rule of constitutional
law, ” and it requires that the Supreme Court have made
the rule “retroactive to cases on collateral
review.” Both statutes, however, require that a §
2255 motion be based on a rule or right that is, ...