United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge
Dwayne Brunson, a federal prisoner proceeding pro
se, filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence ("§ 2255
Motion, " ECF No. 45). By Memorandum Opinion and Order
entered February 14, 2017, the Court denied Brunson's
§ 2255 Motion because it was barred by the applicable
one-year statute of limitations. United States v.
Brunson, No. 3:12CR113, 2017 WL 600088, at *3 (E.D. Va.
Feb. 14, 2017). On February 27, 2017, Brunson filed a motion
seeking relief under Fed.R.Civ.P. 59(e) ("Rule 59(e)
Motion, " ECF No. 51) .
of a judgment after its entry is an extraordinary remedy
which should be used sparingly." Pac. Ins. Co. v.
Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998) (citation omitted) (internal quotation marks omitted).
The United States Court of Appeals for the Fourth Circuit
recognizes three grounds for relief under Rule
59(e):H(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice." Hutchinson v.
Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (citing
Weyerhaeuser Corp. v. Koppers Co., 771 F.Supp. 1406,
1419 (D. Md. 1991); Atkins v. Marathon LeTourneau
Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990)).
relies on the first ground for relief, arguing that the
Supreme Court's decision in Mathis v. United
States, 136 S.Ct. 2243 (2016), warrants reconsideration
of the denial of his § 2255 Motion. (Rule 59(e) Mot. 1.)
Brunson contends that Mathis "completely
invalidates [his] Armed Career Criminal Act (ACCA) statutory
sentence because the most innocent conduct under the Virginia
Drug Act statute - - under which [his] predicate convictions
fall - - do not rise to the level of constituting a federal
controlled substance offense." (Id.)
Mathis, the Supreme Court reaffirmed the approach by
which courts should determine if a prior conviction is one of
the enumerated violent felonies set forth in 18 U.S.C. §
924(e) (2) (B) (ii) for purposes of the ACCA. 136 S.Ct. at
2243. Specifically, courts must compare the elements of the
state crime with the generic version of the enumerated
federal offense. Id. at 2248 (citing Taylor v.
United States, 495 U.S. 575, 600-01 (1990)). If the
state crime was "the same as, or narrower than, the
relevant generic offense, " the state crime qualified as
an enumerated offense under the ACCA. Id. at 2257.
The Court emphasized that district courts "may not ask
whether the defendant's conduct-his particular means of
committing the crime-falls within the generic
definition." Id. Moreover, "that rule does
not change when a statute happens to list possible
alternative means of commission: Whether or not made
explicit, they remain what they ever were-just the facts,
which ACCA . . . does not care about." Id.
Court construes Brunson's 59(e) Motion to assert that he
is entitled to belated commencement of the limitation period
for his § 2255 Motion based upon Mathis. A
petitioner is entitled to belated commencement of the
limitations period under 28 U.S.C. § 2255(f)(3) based
upon a right "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." 28 U.S.C. § 2255(f)(3). Mathis,
however, is not a new right that triggers the belated
commencement provision of 28 U.S.C. § 2255(f)(3).
See United States v. Grubb, No. 7:00cr00015, 2017 WL
384701, at *3 (W.D. Va. Jan. 26, 2017); Milan v. United
States, Nos. 3:16-CV-1850-D-BK, 3:09-CR-0095-D-l, 2017
WL 535599, at *2 (N.D. Tex. Jan. 18, 2017), Report and
Recommendation adopted by 2017 WL 529334 (N.D. Tex. Feb.
9, 2017); United States v. Sonczalla, No. 07-187
(RHK), 2016 WL 4771064, at *2 (D. Minn. Sept. 12, 2016);
Dimott v. United States, NOS. 2:06-cr-26-GZS,
2:16-CV-347-GZS, 2016 WL 6068114, at *3 (D. Me. Oct. 14,
2016); cf. In re Lott, 838 F.3d 522, 523 (5th Cir.
2016) (denying authorization to file a second or successive
application under 28 U.S.C. § 2255(h)(2) because
Mathis did not set forth a new rule of
constitutional law made retroactive to cases on collateral
review). Therefore, Brunson cannot rely upon the
Mathis decision to render his § 2255 Motion
the decision in Mathis were retroactively applicable
to cases on collateral review, it would provide no relief to
Brunson. Brunson was sentenced under the ACCA because of his
previous convictions for Distribution of Cocaine and
Possession of Cocaine with Intent to Distribute.
Brunson, 2017 WL 600088, at *1. Because Brunson was
not sentenced under the violent felony provision of the ACCA,
Mathis does not apply. Cf. United States v.
Jeffery, No. 14-cr-20427-01, 2017 WL 764608, at *2 (E.D.
Mich. Feb. 28, 2017) (concluding the same with respect to
defendant sentenced as a career offender pursuant to §
4B1.2(a) of the Sentencing Guidelines because of his two
prior controlled substances convictions). Accordingly,
Brunson fails to demonstrate an intervening change in
controlling law or any other basis for granting relief under
Rule 59(e). Brunson's Rule 59(e) Motion (ECF No. 51) will
be denied. The Court will deny a certificate of
Clerk is directed to send a copy of this Memorandum Opinion
to Brunson and counsel of record.
 This is the date Brunson states he
placed his Rule 59(e) Motion in the prison mailing system
(Rule 59(e) Mot. 12), and the Court deems this the filed
date. See Houston v. ...