United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS JUDGE
before the Court are the Objections to Report and
Recommendation (Doc. 74) filed by Defendant/Movant Mikato
Fulks in this case. On May 26, 2016, Mr. Fulks, through
counsel, filed a Motion under 28 U.S.C. § 2255
requesting that he be resentenced under Johnson v. United
States, 135 S.Ct. 2551 (2015). That Motion was stayed
pending the Supreme Court's decision in Beckles v.
United States, Case No. 15-8544 (cert, granted
June 27, 2016), which was ultimately decided on March 6,
2017. 137 S.Ct. 886 (2017). Upon the Supreme Court's
ruling in Beckles, Mr. Fulks, through counsel, filed
a Motion to Dismiss his previous Motion under § 2255
(Doc. 62). However, Mr. Fulks filed a pro se Motion
under § 2255 (Doc. 64) on May 15, 2017, prior to the
Court's ruling on his Motion to Dismiss. The Court
granted Mr. Fulks' Motion to Dismiss on May 23, 2017, and
dismissed his original Motion under § 2255 without
prejudice. (Doc. 65).
24, 2017, the Court directed the previously filed notice of
communication from a represented party to be filed as a
pro se Motion to Vacate under § 2255. (Doc.
65). That Motion was considered by Magistrate Judge Erin L.
Wiedemann, who issued her Report and Recommendation
("R&R") denying Mr. Fulks' Motion on June
12, 2018. Mr. Fulks filed his Objections to the R&R on
June 22, 2018, (Doc. 66), alleging that the cases of
Mathis v. United States, 136 S.Ct. 2243 (2016), and
Hinkle v. United States, v 832 F.3d 569
(5th Cir. 2016), should be retroactively applied to the facts
of his case. Upon retroactive application of these rulings,
Mr. Fulks claims that his prior convictions do not qualify as
predicate offenses under § 2K2.1(a)(2) of the Sentencing
Guidelines, and he seeks to be resentenced in accordance with
the holdings in Mathis and Hinkle.
February 6, 2015, Mr. Fulks entered into a written plea
agreement whereby he pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). (Doc. 26). Mr. Fulks had two prior felony
convictions, one for a crime of violence (second degree
murder) and one for a controlled substance offense (delivery
of cocaine); therefore, his Presentence Investigation Report
assigned Mr. Fulks a base offense level of 24 pursuant to
§ 2K2.1(a)(2) of the United States Sentencing
Guidelines. (Docs. 34, 36). On May 14, 2015, at Mr.
Fulks' sentencing hearing, the Court imposed a sentence
of 70 months imprisonment, three years supervised release,
and a $2, 000.00 fine. (Doc. 41). The Eighth Circuit Court of
Appeals affirmed Mr. Fulks' conviction and sentence on
February 8, 2016. (Doc. 52-1).
to Mr. Fulks' objections to the R&R, his challenge
under Mathis fails because that case is not given
retroactive effect on collateral review. See United
States v. Crawford, 2018 U.S. Dist. LEXIS 83962 at 1 (D.
Neb. 2018); see also United States v. Forrest, 2017
U.S. Dist. LEXIS 200657 at 4 (D. Neb. 2017) ("It is
undisputed that Mathis . . . [is] not
retroactive."). Mr. Fulks claims that Mathis
announced a new rule of constitutional law, which makes it
retroactive to cases on collateral review; however,
Mathis dealt with statutory interpretation and did
not announce any new rule of constitutional law. See
Dawkins v. United States, 829 F.3d 549, 551 (7th Cir.
Mr. Fulks' reliance on Hinkle is also misplaced
as that case addressed a defendant's claims on direct
appeal, rather than claims raised in collateral proceedings.
See Gates v. United States, 2017 U.S. Dist. LEXIS
108356 at n.1 (N.D. Iowa 2017). Another obstacle worth
mentioning is that § 2255(f)(3) begins tolling the
statute of limitations from "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[.]" (emphasis added).
Hinkle was decided by the Fifth Circuit Court of
Appeals, not the United States Supreme Court, and Mr. Fulks
may not rely on the Fifth Circuit's decision to seek
relief under § 2255 here in the Eighth Circuit. See
an evidentiary hearing on Mr. Fulks' Motion is not
warranted because the Motion and the record in this case
conclusively establish that Mr. Fulks is not entitled to
relief. See 28 U.S.C. § 2255(b); see also
Jeffries v. United States, 721 F.3d 1008, 1014 (8th Cir.
as Mr. Fulks has failed to present the Court with any
meritorious argument justifying his request for relief, his
objections are OVERRULED, the
R&R is ADOPTED IN FULL,
and IT IS ORDERED that Mikato Fulks'
Motion to Vacate, Set Aside, or Correct a Sentence by a
Person in Federal Custody pursuant to 28 U.S.C. ...