# Rackers v. United States

> District Court, E.D. Missouri · September 13, 2023

URL: https://www.frixlaw.com/law-library/cases/10239273

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10239273

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

MICHAEL DONALD RACKERS, )
)
Movant, )
)
v. ) No. 1:21-CV-15 RLW
)
UNITED STATES OF AMERICA, )
)
Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on Movant Michael Donald Rackers’ pro se Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF
No. 1) filed February 1, 2021, and the United States of America’s Motion to Dismiss Section
2255 Petition Filed by Defendant (ECF No. 4) as untimely. The United States also filed a
Response in opposition (ECF No. 5) addressing the merits of the § 2255 Motion, but Movant did
not file a reply.
Rackers also did not respond to the United States’ Motion to Dismiss. Instead, on February
28, 2022, Rackers filed a pro se motion (ECF No. 10) that the Court construes as a motion for
leave to file an amended § 2255 motion to add a new claim under Borden v. United States, 141
S. Ct. 1817 (2021). The United States opposes amendment on the grounds that (1) the new claim
does not relate back to the original § 2255 Motion and is time barred; and (2) Rackers’ conviction
is unaffected by the holding of Borden. Rackers did not reply in support of his motion for leave
to file an amended § 2255 motion.
For the following reasons, the Court will grant the United States’ motion to dismiss the
original § 2255 Motion as time barred, and will deny Rackers leave to file an amended § 2255
motion because it is also time barred.
Background

On December 21, 2017, a federal grand jury returned an Indictment against Rackers
charging him with: (1) Possession with Intent to Distribute Marijuana in violation of 21 U.S.C.
§ 841(a)(1); (2) Possession of a Firearm in Furtherance of a Drug Trafficking Crime in violation
of 18 U.S.C. § 924(c)(1)(A); and (3) Felon in Possession of a Firearm in violation of 18 U.S.C.
§ 922(g)(1). (Case Number 1:17 CR 120 RLW, ECF No. 1) (“Criminal Case”) After Rackers
made his initial appearance, the Court appointed an assistant Federal Public Defender to represent
Rackers. (Crim. Case, ECF No. 6.) On December 27, 2017, a privately retained attorney entered
her appearance for Rackers. (Id., ECF No. 11.)
On April 20, 2018, Rackers waived his right to file pretrial motions. That waiver was
accepted by the Court. (Crim. Case, ECF No. 35.) On August 20, 2018, Rackers appeared before
the District Court and entered a guilty plea to Counts 1, 2, and 3 of his Indictment. Rackers also
signed a written plea agreement setting out the terms of his guilty plea agreement with the
Government. (Id., ECF No. 44.)
On February 19, 2019, the Court conducted Rackers’ sentencing, and varied downward
from the applicable Guideline range for Counts 1 and 3 and imposed a sentence of 15 months on
each of Counts 1 and 3, to be served concurrently, and 60 months on Count 2, to be served

consecutively to Counts 1 and 3, for a total sentence of 75 months. (Crim. Case, ECF No. 57 at
2.) The Court also ordered that Rackers serve a period of supervised release of two years. (Id. at
3.) Rackers did not appeal either his conviction or sentence.1
Defendant’s attorney filed a Motion to Correct Clerical Error in Judgment (Crim. Case,
ECF No. 63) on April 30, 2020, seeking to amend the Judgment to reflect the correct charge of

1Rackers was released from the custody of the federal Bureau of Prisons on May 26, 2023, but the
instant § 2255 motion is not moot as a result, as Rackers was in custody at the time the motion was filed,
the motion challenges his conviction, and he remains on supervised release.
conviction as pronounced by the Court and to which Defendant had pleaded guilty. The Motion
stated that Rackers’ Judgment incorrectly recited that his conviction for Count 2 was “Possession
of a Firearm in Furtherance of a Crime of Violence,” when it was actually “Possession of a
Firearm in Furtherance of a Drug Trafficking Crime.” The Government agreed with Rackers that
Count 2 as listed in the Judgment was in error and should be amended to reflect the actual charge
of conviction. (Crim. Case, ECF No. 65). The Court issued an Order Amending Judgment (Id.,
ECF No. 66) that granted Defendant’s Motion to Correct Clerical Error in Judgment pursuant to

Rule 36, Federal Rules of Criminal Procedure, and directed the preparation of an Amended
Judgment.
Rackers filed the instant § 2255 Motion on February 1, 2021. It contains one ground with
numerous subparts, primarily asserting claims of ineffective assistance of counsel but including
other claims as well.2
Legal Standards
Rule 4(b) of the Rules Governing § 2255 Proceedings for the United States District Courts
provides that a district court may summarily dismiss a § 2255 motion if it plainly appears that the
movant is not entitled to relief. A district court may consider, on its own initiative, whether a

2Rackers’ Ground One asserts “Ineffective Assistance of counsel violation of 4, 5, 6th
Amendments to the Bill of Rights,” and includes the following alleged errors: Counsel did not introduce
to the court defendant’s felony conviction Theft/Stealing $500.00 or more was a misdemeanor not a felony;
petitioner was not a felon; warrantless search of Petitioner’s residence posted no trespassing and private
property; failure to suppress evidence as instructed by petitioner; failure to object to petitioner’s
prosecution of being in possession of firearms that were legally possessed by another; counsel did not
enter into record there was no video of traffic stop; traffic stop was unconstitutional; counsel failed to
advise petitioner of consequences of guilty plea; counsel did not challenge prosecution of illegally obtained
evidence on petitioner’s private property. Warrantless search of private property (fruit of the poisonous
tree.); 1 gram of pot in Missouri is a misdemeanor. Petitioner was arrested and forced back to residence.
Petitioner should have been issued a ticket and released, not detained; illegal surveillance on petitioner’s
home; no probable cause for traffic stop; no due process given to petitioner on state conviction being
enhanced to a felony from misdemeanor; counsel misled defendant on matters central to defense strategy;
counsel had multiple representation which was prejudicial to petitioner’s case; counsel had lack of
diligence in seeking bond; low payment as reason for counsel’s lack of effort in defending petitioner. (ECF
No. 1 at 4, 17-24.)
habeas action is barred by the statute of limitations. Day v. McDonough, 547 U.S. 198, 210
(2006). Before dismissing a habeas action as time barred, however, the court must provide notice
to the movant. Id. In this case, the United States filed a motion to dismiss Rackers’ § 2255 motion
as untimely and therefore Rackers has notice that timeliness of his motion is at issue.
Motions brought under 28 U.S.C. § 2255 are subject to a one-year limitations period.
Peden v. United States, 914 F.3d 1151, 1152 (8th Cir. 2019). Under 28 U.S.C. § 2255(f):
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall 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 the exercise of due diligence.

Discussion
A. Rackers’ Original § 2255 Motion is Time Barred
A review of the United States’ Motion to Dismiss and Rackers’ original § 2255 motion
indicates it is time barred under 28 U.S.C. § 2255(f) and must be dismissed. Judgment was issued
in Rackers’ criminal case on February 19, 2019, and he did not appeal. See United States v.
Michael Donald Rackers, No. 1:17-CR-120 RLW (ECF No. 57). An unappealed criminal
judgment becomes final, for purposes of calculating the time limit for filing a motion under
§ 2255, when the time for filing a direct appeal expires. Moshier v. United States, 402 F.3d 116,
118 (2d Cir. 2005). In this case, the Judgment became final on March 5, 2019, fourteen days after
it was entered. See Federal Rule of Appellate Procedure 4(b)(1). Rackers did not file the instant
motion until February 2021 – approximately eleven (11) months after the 1-year § 2255(f)(1)
period expired. Rackers’ § 2255 Motion is therefore time barred.
Although Rackers did not respond to the Motion to Dismiss, the United States notes that
Rackers cites the date of his Amended Judgment in the criminal case as the date he relied on for
purposes of the one-year limitation period. Page 13 of the form § 2255 motion sets out the
following requirement:
18. TIMELINESS OF MOTION: If your judgment of conviction became final over
one year ago, you must explain why the one-year statute of limitations as contained
in 28 U.S.C. § 2255 does not bar your motion.

In response, Rackers provided the following information:
“Amended Judgment on this case as of May 15, 2010 Docket number 67.”
(ECF No. 1 at 13.)
Entry of the Amended Judgment in the criminal case does not serve to extend the time for
Rackers to file a motion under § 2255, however, because the Amended Judgment merely
corrected a clerical error and does not affect the date Rackers’ Judgment became final. A review
of the procedural history of the Amended Judgment and the relevant law explains why this is so.
Defendant’s retained attorney filed a Motion to Correct Clerical Error in Judgment (Crim.
Case, ECF No. 63) in the criminal case on April 30, 2020, to amend the Judgment to reflect the
correct charge of conviction as pronounced by the Court and to which Defendant had pleaded
guilty. The Court issued an Order Amending Judgment (id., ECF No. 66) that granted Defendant’s
Motion to Correct Clerical Error in Judgment. This Order stated in pertinent part,
Count II of the Indictment charged Defendant with Possession of a Firearm
in Relation to a Drug Trafficking Crime. (ECF No. 1.) Defendant's Plea Agreement
states that Count II charges Possession of a Firearm in Relation to a Drug
Trafficking Crime. (ECF No. 44 at 2.) The Judgment was issued February 19, 2019,
and states in pertinent part that Defendant was adjudicated guilty on Count II of the
crime of Possession of a Firearm in Relation to a Crime of Violence. (ECF No. 57
at 1.) As such, the Judgment does not reflect the sentence orally imposed by the
Court.
Rule 36 of the Federal Rules of Criminal Procedure provides a mechanism
for the correction of clerical errors in a judgment. The Rule states:

After giving any notice it considers appropriate, the court may at
any time correct a clerical error in a judgment, order, or other part
of the record, or correct an error in the record arising from oversight
or omission.

Rule 36, Fed. R. Crim. P. The Judgment’s failure to reflect the correct crime for
which Defendant was adjudicated guilty on Count II is a clerical error for which
relief is available under Rule 36.

(Crim. Case, ECF No. 66 at 1-2.) Thus, the Court issued an Amended Judgment under Rule 36 to
correct a clerical error, and did not make any substantive change.
When an amended judgment is merely a clerical correction to the sentence, as here, no
new judgment arises for purposes of Federal Rule of Appellate Procedure 4(b)(1)(A), and the date
of the original judgment remains the operative judgment for purposes of calculating the one-year
limitation period of Section 2255(f)(1). See Patterson v. Fla. Dep’t of Corr., 849 F.3d 1321, 1326
(11th Cir. 2017) (en banc) (correction of clerical error does not create a new judgment for appeal
purposes); Borgesano v. United States, No. 20-11453, 2021 WL 2879696, at *4 (11th Cir. July 9,
2021) (where amended judgment was issued to correct clerical error, the district court properly
used that date to calculate when § 2255 motion was due); see also Dyab v. United States, 855
F.3d 919, 923 (8th Cir. 2017) (“Fixing typographical errors and the like does not substantively
alter a prisoner’s sentence, so a § 2255 motion filed after such a correction is still a challenge to
the original judgment.”); United States v. Brown, 915 F.3d 1200, 1202 (8th Cir. 2019) (amended
judgment issued to correct an error in the record did not create a new sentence for the purposes
of § 2255 petition, which was successive and barred); United States v. Saaga, Crim. No. 2:14-cr-
20017-PKH-MEF-1, Civ. No. 2:19-cv-02068-PKH-MEF, 2020 WL 1034626, at *4 (W.D. Ark.
Feb. 14, 2020) (recommending that § 2255 motion be dismissed as time barred where amended
judgments were issued to correct clerical errors; citing Dyab and Brown).
Based on these authorities, the Court determines that the due date for Rackers’ § 2255
Motion is unaffected by the entry of the Amended Judgment and is properly based on the date of
the original judgment. Because Rackers’ § 2255 Motion was filed more than a year after his
judgment became final, it is time barred and the United States’ motion to dismiss will be granted.
B. Motion for Leave to File Amended § 2255 Motion
On February 28, 2022, Rackers filed a document that the Court has liberally construed as
a motion for leave to file an amended § 2255 motion to raise a claim under Borden v. United

States, 141 S. Ct. 1817 (2021). Borden held that a crime that can be committed with a state of
mind of recklessness categorially cannot qualify as a “crime of violence” or a violent felony under
the force or “elements” clause of the Armed Career Criminal Act, 18 U.S.C. § 924(3)(2)(B)(i).
United States v. Matthews, 25 F.4th 601, 603 (8th Cir. 2022) (quoting United States v. Hoxworth,
11 F.4th 693, 695 (8th Cir. 2021)). The motion for leave to file an amended § 2255 motion will
be denied for the following reasons.
First, Rackers’ new Borden claim is time barred to the extent he would attempt to rely on
Rule 15(c)(1)(B), Federal Rules of Civil Procedure. “Claims made in an untimely filed motion
under § 2255 may be deemed timely if they relate back to a timely filed motion as allowed by
Federal Rule of Civil Procedure 15(c).” Taylor v. United States, 792 F.3d 865, 869 (8th Cir. 2015)

(quoting Dodd v. United States, 614 F.3d 512, 515 (8th Cir. 2010)). Rule 15(c)(1)(B) provides
that an “amendment to a pleading relates back to the date of the original pleading when: . . . the
amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set
out—or attempted to be set out—in the original pleading[.]” Rule 15(c)(1)(B), Fed. R. Civ. P.
“To arise out of the same conduct, transaction, or occurrence, the claims must be ‘tied to a
common core of operative facts.’” Dodd, 614 F.3d at 515 (quoting Mayle v. Felix, 545 U.S. 644,
664 (2005) (analyzing relation back in the context of a 28 U.S.C. § 2254 petition)). New claims
must arise out of the “same set of facts” as the original claims, and “[t]he facts alleged must be
specific enough to put the opposing party on notice of the factual basis for the claim.” Taylor,
792 F.3d at 869 (quoting Dodd, 614 F.3d at 515).
Here, Rackers’ Borden claim is not tied to a common core of operative facts with the
ineffective assistance of counsel and other claims set forth in the original § 2255 motion and
therefore does not relate back under Rule 15(c)(1)(B). In addition, even if the Borden claim could
relate back under Rule 15(c)(1)(B), the original motion is itself time barred and therefore cannot

operate to render the amended motion timely.
Second, to the extent Rackers might assert his Borden claim is timely under § 2255(f)(3),
neither the Supreme Court nor the Eighth Circuit has addressed whether Borden applies
retroactively on collateral review. As such, there is no binding authority on this Court to indicate
that Borden has been made retroactively applicable to cases on collateral review. Consequently,
Rackers’ proposed amended motion cannot be timely pursuant to § 2255(f)(3).
Finally, even assuming a Borden claim could be raised on collateral review and be timely
in this case, Borden’s holding does not apply here. Rackers was convicted of possessing a firearm
during and in relation to a drug trafficking crime, not a crime of violence, and he was not
sentenced to a mandatory minimum term of imprisonment as an armed career criminal under 18

U.S.C. § 924(e). Further, Rackers’ underlying conviction for possession with intent to distribute
marijuana required a “knowing or intentional” mens rea, not one of recklessness. See 21 U.S.C.
§ 841(a). As a result, Borden’s holding as to the force clause of § 924(e) can have no effect on
Rackers’ convictions. See United States v. Tucker, No. 7:16CR00002, 2021 WL 4841271, at *2
(W.D. Va. Oct. 18, 2021) (“Because [defendant] was not sentenced pursuant to a mandatory
minimum term of imprisonment under § 924(e), Borden is not applicable.”).
Conclusion
Movant Rackers was provided notice as to the untimeliness of his § 2255 Motion and he
made no response. For the reasons discussed above, Rackers’ original motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255 is time barred under 28 U.S.C. § 2255(f) and the
United States’ motion to dismiss it will be granted. Rackers’ motion for leave to file an amended
§ 2255 to raise a Borden claim will be denied as untimely.
Accordingly,
IT IS HEREBY ORDERED that the United States of America’s Motion to Dismiss
Section 2255 Petition Filed by Defendant (ECF No. 4) is GRANTED.
IT IS FURTHER ORDERED that Movant Michael Donald Rackers’ Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 1) is DENIED and
DISMISSED as time barred. See 28 U.S.C. § 2255(f).
IT IS FURTHER ORDERED that Movant’s Motion for Leave to File an Amended
§ 2255 Motion (ECF No. 10) is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
A separate judgment will accompany this Memorandum and Order.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

Dated this 13th day of September, 2023.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10239273. Public record. Not legal advice.