UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, Crim. No. 09-cr-20002

Civ. No. 16-cv-11309

vs. Hon. Gerald E. Rosen

ROBERT PIZZINO,

Defendant.

_______________________________/

OPINION AND ORDER (1) DENYING DEFENDANT’S § 2255 MOTION

TO VACATE, SET ASIDE OR CORRECT SENTENCE, (2) DENYING

CERTIFICATE OF APPEALABILITY, AND (3) DENYING

LEAVE TO APPEAL IN FORMA PAUPERIS

At a session of said Court, held in

 the U.S. Courthouse, Detroit, Michigan

on November 8, 2016

PRESENT: Honorable Gerald E. Rosen

 United States District Judge

I. INTRODUCTION

On May 21, 2009, Defendant Robert Pizzino pleaded guilty to one count of

distribution of child pornography, 18 U.S.C. § 2252A(a)(2). On September 3, 2009, he

was sentenced to a term of imprisonment of 180 months. On April 8, 2011, the Sixth

Circuit Court of Appeals entered an Opinion vacating the sentence imposed on Pizzino

and remanded the case for a resentencing to address Pizzino’s nonfrivolous arguments

for leniency. A resentencing hearing was held in accordance with the Sixth Circuit’s

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ruling, and on September 13, 2011, Pizzino was again sentenced to a 180-month term of

incarceration, with credit for the time served on the sentence previously imposed. The

Sixth Circuit affirmed the new judgment, and on January 10, 2013, the U.S. Supreme

Court denied Pizzino’s petition for a writ of certiorari.

On April 8, 2016, Pizzino filed the instant Motion under 28 U.S.C. § 2255 to

Vacate, Set Aside or Correct Sentence. For the reasons set forth below, the Court

concludes that Defendant’s Motion is untimely and, therefore, will be denied.

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes that

state and federal prisoners have a one-year limitations period within which to file a

habeas corpus petition or § 2255 motion. See 28 U.S.C. § 2255(f); Mayle v. Felix, 545

U.S. 644, 655, 125 S.Ct. 2562, 2569 (2005). Generally, this one-year period begins runs

when the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). A conviction

becomes final upon conclusion of direct review. See Sanchez-Castellano v. United

States, 358 F.3d 424, 426 (6th Cir.2004) (citing United States v. Cottage, 307 F.3d 494,

498 (6th Cir. 2002)). When a petition for a writ of certiorari is filed, the conviction

becomes final when the writ is denied. United States v. Hicks, 283 F.3d 380, 387 (D.C.

Cir. 2002).

In this case, therefore, to have been timely, Defendant’s § 2255 motion had to have

been filed one-year from January 10, 2013, when the Supreme Court denied his petition

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for a writ of certiorari -- i.e., by January 10, 2014. Pizzino, however, did not file his

motion until April 8, 2016 -- more than two years after the time for filing a § 2255 motion

had expired.

The statute, however, provides an exception to this “one year from the date of

conviction becomes final” rule: § 2255(f)(3) provides that if the Supreme Court creates a

newly-recognized right, and makes that newly-recognized right retroactively applicable

to cases on collateral review, then a § 2255 movant has one year from the date that new

right was first recognized to file his motion. The newly-created right, logically would

have to be relevant and applicable to the movant’s argument.

Defendant Pizzino here contends that his motion is timely because it was filed

within a year of the Supreme Court’s decision in Johnson v. United States, ___ U.S. ___,

135 S.Ct. 2551 (2015). Defendant argues that, in Johnson, the Supreme Court first

recognized the “vagueness doctrine,” the purported newly recognized right upon which

he relies in arguing that his guilty plea should be set aside. See Memorandum in Support

of § 2255 Motion, Dkt. # 53, p. 3. 

In Johnson, the Court held that the residual clause of the Armed Career Criminal

Act, 18 U.S.C. § 924(e)(2)(B)(ii) (the “ACCA”), which defines the term “violent felony”

as including an offense that “involves conduct that presents a serious potential risk of

physical injury to another” is unconstitutionally vague. Johnson is wholly inapplicable

here. Pizzino was not sentenced pursuant to the ACCA, and the Act had no application

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whatsoever with regard to Defendant Pizzino’s sentence for distribution of child

pornography. Nor were the Career Offender Guidelines implicated in his case.1

With respect to Pizzino’s argument concerning the “vagueness doctrine” being a

newly recognized right in Johnson, Defendant is mistaken. Johnson, did not recognize

the vagueness doctrine as a new right. The void for vagueness doctrine is “an outgrowth

. . . of the Due Process Clause of the Fifth Amendment,” United States v. Paull, 551 F.3d

516, 525 (6th Cir. 2009), and it existed years before Johnson was decided. See, Connally

v. Gen. Constr. co. 269 U.S. 385 (1926); Grayned v. City of Rockford, 408 U.S. 104, 108

(1972); Kolender v. Lawson, 461 U.S. 352, 357 (1983).

As the vagueness doctrine was in existence when Defendant’s sentence became

final on January 10, 2013, Pizzino would have had to have filed his § 2255 motion

raising his vagueness argument within the following year. Because Pizzino did not file

his motion before January 10, 2014, the present motion is untimely and statutorily barred. 

Accordingly, Defendant’s § 2255 Motion will be DENIED.

The Court will also deny a certificate of appealability. Before a Section 2255

movant may appeal an adverse decision, a certificate of appealability must issue. 28

U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). In order to obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial of a constitutional

1

 In United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016), the Sixth Circuit

determined that Johnson’s rationale applies with equal force to the Career Offender

Guidelines’ residual clause.

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right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to

show that reasonable jurists could debate whether, or agree that, the matter should have

been resolved in a different manner, or that the issues presented were adequate to deserve

encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). 

When a district court rejects a habeas petitioner’s constitutional claims on the merits, the

petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims to be debatable or wrong. Id. at 484. “The district

court must issue or deny a certificate of appealability when it enters a final order adverse

to the applicant.” Rules Governing § 2255 Cases, Rule 11(a), 28 U.S.C. foll. § 2255. 

For the reasons stated in this Opinion, the Court will deny Defendant Pizzino a

certificate of appealability because he has failed to make a substantial showing of the

denial of a federal constitutional right. The Court also will deny leave to appeal in forma

pauperis as an appeal cannot be taken in good faith. Fed. R. App. P. 24(a).

III. CONCLUSION

For all of the reasons set forth above in this Opinion and Order,

IT IS HEREBY ORDERED that Defendant Pizzino’s § 2255 Motion to Vacate,

Set Aside, or Correct his Sentence [Dkt. # 43] is DENIED, and his Motions to proceed in

habeas proceeding ifp [Dkt. # 45] and for plea and sentencing transcripts [Dkt. # 46] are

denied as MOOT. Accordingly,

IT IS FURTHER ORDERED that Civil Action No. 16-cv-11309 is DISMISSED,

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with prejudice.

IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.

Leave to appeal in forma pauperis also is DENIED.

s/Gerald E. Rosen 

United States District Judge

Dated: November 8, 2016

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on November 8, 2016, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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