United States District Court, N.D. Iowa, Western Division
INITIAL REVIEW ORDER
MARK W. BENNETT, District Judge.
I. INTRODUCTION AND FACTUAL BACKGROUND
This case is before me on petitioner Dennis Putzier's pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (docket no. 1). In his § 2255 motion, Putzier claims that he is entitled to relief under the United States Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013). In Descamps, the Court held that in determining whether a predicate crime is a violent felony under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), a sentencing court may not use the so-called modified categorical approach when the crime in question has "a single, indivisible' set of elements sweeping more broadly than the corresponding generic offense." Descamps, 133 S.Ct. at 2283. Putzier claims that I violated Descamps by using the modified categorical approach to determine that his 2011 Iowa burglary in the third degree conviction constituted a crime of violence for the purposes of career offender guidelines. See U.S.S.G. § 4B1.1.
I am required to make an initial review of the motion under Rule 4(b) of the Rules Governing Section 2255 Proceedings. Summary dismissal of a § 2255 motion is appropriate where the allegations are vague or conclusory, palpably incredible, or patently frivolous or false. See Blackledge v. Allison, 431 U.S. 63, 75-76 (1977).
On December 15, 2010, an Indictment was returned charging Putzier with conspiracy to possess with intent to distribute 500 grams of methamphetamine and to possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 846. On March 10, 2011, Putzier appeared before Chief United States Magistrate Judge Paul A. Zoss and entered a plea of guilty to Count 1 of the Indictment. On this same date, Judge Zoss filed a Report and Recommendation in which he recommended that Putzier's guilty plea be accepted. Both Putzier and the prosecution waived the time to object to Judge Zoss's Report and Recommendation and I accepted Judge Zoss's Report and Recommendation and Putzier's guilty plea on March 10, 2011. At Putzier's sentencing, on June 21, 2011, I determined, over Putzier's objection, that Putzier's 2011 Iowa conviction for third-degree burglary was a "crime of violence" for career-offender purposes under U.S.S.G. § 4B1.1(a)(3) and that, as a result, Putzier qualified as a career offender. As a result, I sentenced him to 262 months in prison and ten years of supervised release. Putzier appealed his sentence, challenging his career offender enhancement. On appeal, Putzier contended that "the PSR is not a document upon which the District Court was permitted to rely in making the career-offender determination, citing Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)." United States v. Putzier, 460 Fed.App'x 610, 611 (8th Cir. 2012). In rejecting Putzier's argument and affirming his sentence, the Eighth Circuit Court of Appeals explained that:
Shortly after Shepard was decided, however, we noted that a defendant's failure to object to the portion of the PSR that describes the factual basis of a predicate offense that may be used to enhance a sentence constitutes an admission of the cited facts. United States v. Menteer, 408 F.3d 445, 446 (8th Cir. 2005) (per curiam) (armed-career-criminal enhancement); see also United States v. Reliford, 471 F.3d 913, 916-17 (8th Cir. 2006), cert. denied, 550 U.S. 938 , 127 S.Ct. 2248, 167 L.Ed.2d 1097 (2007). Putzier's objection to paragraph 33 of the PSR, which referenced the burglary conviction but not the underlying facts of the crime, did not put the government on notice that it might need to produce Shepard -approved documentation of the burglary details. Even after the probation officer responded to Putzier's objection to paragraph 33 by noting that Putzier pleaded guilty to entering or breaking into an occupied structure, Putzier did not object to the facts set out in paragraph 60. Because the facts underlying Putzier's conviction for burglary of a dwelling, a crime of violence under the Guidelines, were deemed admitted, the District Court properly considered the burglary conviction, without further documentation of the details, in making the determination that Putzier was a career offender.
II. LEGAL ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year period of limitation on the filing of a § 2255 motion. See 28 U.S.C. § 2255. The one-year limitations period begins to run 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 making a motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through ...