United States District Court, D. Vermont
ORDER (DOC. 83)
J. Garvan Murtha United States District Judge.
Brian Hoskins filed a motion to correct his sentence under 28
U.S.C. § 2255. (Doc. 62.) The government opposed the
motion. (Doc. 64.) The motion was referred to Magistrate
Judge Conroy, who, following an evidentiary hearing, issued a
Report and Recommendation on April 28, 2016. (Doc. 83.) The
government timely filed an objection to the Report and
Recommendation. (Doc. 84.) In response, Hoskins filed motions
to strike the objection, to disqualify government counsel,
and for an extension of time to file a response regarding the
Report and Recommendation. (Docs. 86, 87.) The government
replied to the motions to strike and to disqualify, and moved
for leave to file an oversize memorandum. (Doc. 88.) The
Court granted in part and denied in part the motion to strike
and to disqualify counsel, granted in part and denied in part
the government’s motion for leave to file an oversize
memorandum, and granted Hoskins’ motion for an
extension. (Doc. 89.) The government’s objection was
refiled (Doc. 90) and Hoskins responded (Doc. 93). For the
reasons discussed below, after de novo review, the Report and
Recommendation is AFFIRMED, APPROVED and ADOPTED.
See 28 U.S.C. § 636(b)(1).
Hoskins’ motion to correct sentence under 28 U.S.C.
§ 2255 (Doc. 62) is GRANTED in part.
January 11, 2012, Hoskins pleaded guilty to one count of
knowingly and intentionally distributing cocaine base, a
Schedule II controlled substance, in violation of 21 U.S.C.
§ 841(a)(1). (Dkt. Entry No. 42 (minute entry for change
of plea hearing); see also Doc. 41 (Plea Agreement).
On May 22, 2012, Hoskins was sentenced to a term of
imprisonment of 112 months, followed by a five-year term of
supervised release, under a binding plea agreement under
Federal Rule of Civil Procedure 11(c)(1)(C). (Doc. 56
(Judgment); Dkt. Entry No. 55 (minute entry for sentencing
hearing).) Hoskins did not appeal. Instead, on May 12, 2013,
Hoskins challenged his 2002 Vermont state drug conviction.
(Doc. 62-2.) On March 31, 2015, his petition was granted and
his conviction vacated. (Doc. 62-1.) The State later dropped
the charges. See Doc. 62 at 3.
in a § 2255 motion filed on December 14, 2015, Hoskins
challenges his sentence because, based on a 2003 federal
conviction and the 2002 Vermont state conviction, he
qualified as a career offender and, since he was sentenced,
his Vermont conviction was vacated. (Doc. 62 at 1.)
Accordingly, he asserts he no longer qualifies as a career
offender and allowing his 112-month sentence to stand
violates the laws of the United States, violates due process
of law and results in a fundamental miscarriage of justice.
Id. He asserts without the career offender status,
his guideline range was 37-46 months’ imprisonment,
more than 100 months less than the enhanced guideline range
of 151-188 months. Id. at 1-2.
April 28, 2016, following a contentious April 7 hearing, the
Honorable John M. Conroy, United States Magistrate Judge,
issued a Report and Recommendation (“R&R”)
responding to Hoskins’ § 2255 motion. (Doc. 83.)
The R&R recommends this Court find the motion timely
under § 2255(f)(4), id. at 8-12, and cognizable
under § 2255 even though he was sentenced under a Rule
11(c)(1)(C) plea agreement, id. at 12-18. Judge
Conroy concluded denial of collateral relief would result in
a miscarriage of justice and, accordingly, this Court should
grant Hoskins’ 28 U.S.C. § 2255 motion to correct
his sentence. Id. at 18-19.
government filed a timely objection (“Objection”)
to the R&R’s recommended grant of the § 2255
motion, raising the following issues: (1) the magistrate
judge erred as a matter of law in recommending the claim be
found cognizable under § 2255; (2) the magistrate judge
erred as a matter of fact in recommending the claim be found
cognizable under § 2255; and (3) the magistrate judge
erred in recommending the § 2255 motion be found timely.
party objects to a magistrate judge’s Report and
Recommendation, the Court reviews the record de novo.
See 28 U.S.C. § 636(b)(1). After review, the
Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” Id. Having reviewed the record de
novo, and considered the government’s objections, the
Court affirms, approves, and adopts the R&R’s
recommendations that this Court find the § 2255 motion
timely and cognizable.
bears the burden of demonstrating he is entitled to relief.
28 U.S.C. § 2255 provides a federal prisoner “may
move the court which imposed the sentence to vacate, set
aside or correct the sentence” on one of the following
four grounds: (1) the sentence was imposed in violation of
the Constitution or laws of the United States; (2) the court
was without jurisdiction to impose such sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) is otherwise subject to collateral attack. 28 U.S.C.
§ 2255(a). As applicable here, a one-year statute of
limitation applies, running from “the date on which the
facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.”
28 U.S.C. § 2255(f)(4).
government objects to the magistrate judge’s conclusion
Hoskins’ § 2255 motion was timely. See
Doc. 90 at 23-24. The Supreme Court has addressed the issue
of “when the 1-year statute of limitations in 28 U.S.C.
§ 2255 . . . begins to run in a case of a
prisoner’s collateral attack on his federal sentence on
the ground that a state conviction used to enhance that
sentence has since been vacated.” Johnson v. United
States, 544 U.S. 295, 298 (2005). The Court held the
vacatur of the state conviction was a “fact”
triggering a new 1-year limitations period under 28 U.S.C.
§ 2255(f)(4), but a petitioner may only take ...