United States v. Nugent

                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA


                                                     Case No. 1:91-CR-020-TFH-1



                                   MEMORANDUM OPINION

       Pending before the Court is petitioner Anthony Nugent’s Motion to Vacate, Set Aside

or Correct his Sentence pursuant to 28 U.S.C. § 2255. [ECF No. 34]. Mr. Nugent challenges

his mandatory, life-without-parole sentence under Miller v. Alabama, 

567 U.S. 460

(2012) and

Montgomery v. Louisiana, 

136 S. Ct. 718

(2016). The government has opposed the motion

[ECF No. 39], and the petitioner has replied [ECF No. 40] and filed a number of supplements

[ECF Nos. 41, 42, 44-45].

       Mr. Nugent and twenty-three others were charged in a 115-count indictment on

October 23, 1991 with participating in a drug distribution ring known as the “R Street Crew.”

United States v. Williams-Davis, 

90 F.3d 490

, 494 (D.C. Cir. 1996). The conspiracy ran from

“in or about May 1983” and continued “up to and including March 26, 1991.” Opp’n Ex. B at

7; Judgment, June 1, 1993, 91-cr-559-02 [ECF No. 2238-2]. After a lengthy trial, Mr. Nugent

was convicted, amongst a number of other charges, of engaging in a continuing criminal

enterprise in violation of 21 U.S.C. § 848(a).

       Mr. Nugent argues that because he was 17 when he became involved in the conspiracy,

his mandatory-life-without parole sentence is now unconstitutional under Miller v. Alabama,


567 U.S. 460

(2012) and Montgomery v. Louisiana, 

136 S. Ct. 718

(2016). Mot. at 2. See


Miller, 567 U.S. at 465

(holding that “mandatory life without parole for those under the age of

 18 at the time of their crimes violates the Eight Amendment’s prohibition on ‘cruel and

 unusual punishments’”); 

Montgomery, 136 S. Ct. at 726

(holding that the Supreme Court’s

 decision in Miller announced a substantive rule of constitutional law and thus applied

 retroactively). The government contends that Mr. Nugent’s motion should be denied because

 it was not filed within a year of the Supreme Court’s decision in Miller. Opp’n at 5. In the

 alternative, the government asserts that Miller does not apply to Mr. Nugent because he was

 not a juvenile when he committed his crimes. Opp’n at 7.

                                         Legal Standard

       Under 28 U.S.C. § 2255, a federal prisoner may “move the court which imposed the

sentence to vacate, set aside or correct [a]sentence” on a number of grounds, including that “the

sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. §

2255(a). If a court finds that that “there has been such a denial or infringement of the

constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack,” the

Court “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him

or grant a new trial or correct the sentence as may appear appropriate.”

Id. at

§ 2255(b).

       The statute includes a “1-year period of limitation,” which, relevant to this case, runs

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.”

Id. at

§ 2255(f)(3). The “date from which the limitations period

begins to run” under this section is the date the Supreme Court “initially recognized” the right

associated with the motion, not the date the right is “made retroactive.” Dodd v. United States,

545 U.S 353, 354-55 (2005).


        The petitioner filed his motion for leave to file a second or successive § 2255 motion in

the D.C. Circuit on December 2, 2016, less than a year after the Supreme Court decided

Montgomery v. Louisiana. 

136 S. Ct. 718

. But the limitations period under § 2255(f)(3) runs

from the date the Supreme Court recognizes a new right, as it did in Miller, not from the date the

Supreme Court decides a right is retroactive, as it did in Montgomery. 

Dodd, 545 U.S. at 354-55


Therefore, because the Supreme Court decided Miller on June 25, 2012, and Mr. Nugent filed his

motion nearly four years later, he filed his motion outside of the one-year limitation period, and

it is thus untimely.

        The petitioner argues that the government waived the timeliness argument by failing to

raise it with the D.C. Circuit. Reply at 1-2. However, in deciding whether to allow petitioners to

file a second or successive § 2255 motion, the D.C. Circuit only determines whether a petitioner

makes a “prima facie showing that [their petition] contains a new rule of constitutional law,

made retroactive on collateral review by the Supreme Court, that was previously unavailable.” In

re Williams, 

759 F.3d 66

, 68 (D.C. Cir. 2014). In authorizing the petitioner’s motion, the D.C.

Circuit “express[ed] no opinion as to the timeliness of [the] petitioner’s motion.” In re: Anthony

T. Nugent, No. 16-3118 (D.C. Cir. Apr. 10, 2017) [ECF No. 2246]. Because the D.C. Circuit

does not consider timeliness when considering whether to allow petitioners to file a second or

successive § 2255 motion, the government did not waive the argument.

        Even if the petitioner’s motion were timely, however, the defendant is not eligible for

relief under Miller and Montgomery because he was not “under the age of 18” when he

committed the crimes for which he was convicted. 

Miller, 567 U.S. at 465

. The indictment

charged the defendant with his involvement in a conspiracy that began “in or about May, 1983,”

approximately one month after his eighteenth birthday. Mot. at 2; Opp’n Ex. B at 7; Judgment,

June 1, 1993, 91-cr-559-02 [ECF No. 2238-2]. For the foregoing reasons, the defendant’s motion

will be denied. An appropriate order accompanies this opinion.

December 30, 2020
                                                  Thomas F. Hogan
                                            SENIOR UNITED STATES DISTRICT JUDGE


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