United States District Court, W.D. Tennessee, Western Division
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255 DENYING CERTIFICATE OF APPEALABILITY CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
S. THOMAS ANDERSON, District Judge.
Before the Court is a Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (the "§ 2255 Motion") filed by Petitioner Joe Howell ("Howell"), Bureau of Prisons register number XXXXX-XXX, an inmate at the Federal Medical Center in Lexington, Kentucky (§ 2255 Motion, ECF No. 1.) For the reasons stated below, Howell's § 2255 Motion is DENIED.
I. Criminal Case Number 05-20151
On April 19, 2005, a federal grand jury sitting in the Western District of Tennessee returned an indictment against Howell, charging him with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). ( See Indictment, United States v. Joe Howell, 2:05-cr-20151-JDB (W.D. Tenn.), ECF No. 1.) Howell entered a plea of not guilty and with the assistance of retained counsel filed a motion to determine his mental competency under 18 U.S.C. § 4241. Based on the results of the evaluation, Howell was found to be competent to stand trial. Thereafter, pursuant to an agreement with the United States, Howell changed his plea to guilty at a change of plea hearing on March 23, 2006. On May 15, 2005, United States District Judge J. Daniel Breen sentenced Howell to a term of imprisonment of 188 months to be followed by three years supervised release and imposed a special assessment of $100. ( See Judgment, ECF No. 34.) Howell did not take a direct appeal.
B. Civil Case 12-2865
On October 1, 2012, Howell filed his pro se § 2255 Motion, raising several claims of ineffective assistance of counsel. Howell also filed a Motion to File a Belated Writ (ECF No. 2). In that Motion, Howell concedes that he filed his § 2255 Motion outside of the one-year statute of limitations. Nevertheless, Howell argues that he is entitled to equitable tolling of the statute of limitations. For cause, Howell contends that another inmate agreed to file a motion for him on February 19, 2008. Only later did Howell learn that the other inmate had filed a motion for retroactive application of the Sentencing Guidelines for crack cocaine offenses pursuant to 18 U.S.C. § 3582, despite the fact that Howell was not convicted of a drug offense. Howell argues then that he was the victim of "more cunning and experienced prisoners" and the abuse of a jailhouse lawyer.
Next, Howell argues that he was not mentally competent to enter a guilty plea or waive his right to appeal or collaterally attack his conviction. Howell cites the circumstances of his firearms offense as well as his unspecified history of psychiatric treatment and substance abuse as evidence of his mental incompetence. Howell was charged with being a felon in possession of a firearm after Howell rammed his vehicle into his girlfriend's residence. When the Millington Police Department responded, Howell began firing shots at the police officers on the scene. Howell also asserts that before the police took him into custody, he attempted to shoot himself in the head. According to Howell, "based upon his clear case of diminished capacity, ' he was not mentally capable of appreciating the seriousness of the proceedings and his actions and thus, he should be allowed to attack his plea, sentence and conviction." (Motion to File Belated Writ 3).
Howell has not made any allegations about his mental state for the period since his criminal conviction became final. Howell goes on to argue that trial counsel provided ineffective assistance by failing to file a motion for downward departure based on Howell's mental condition, an argument that actually goes to the merits of his § 2255 Motion. In his final argument for equitable tolling, Howell challenges federal subject-matter jurisdiction in this underlying criminal case. Howell contends that jurisdiction was lacking because he committed the acts alleged in the indictment in the state of Tennessee, and not on federal property. For these reasons Howell requests that the Court equitably toll the one-year statute of limitations and accept his late-filed § 2255 Motion.
On May 29, 2013, the Court entered an order directing the United States to respond and specifically ordered the United States to address the timeliness of Howell's Motion. (Order Directing Response, ECF No. 3.) The government filed its response to Howell's Motion to File a Belated Writ on July 19, 2013. (Answer, ECF No. 7.) The certificate of service reflects that a copy of the government's response was mailed to Howell at his address of record. ( Id. at 8.) In its response, the government argues that Howell's § 2255 Motion is clearly time-barred. The one-year statute of limitations commenced on the date the judgment against Howell became final. Howell did not pursue a direct appeal of the judgment, and so the one-year limitations period began to run ten days after the entry of judgment, which was May 25, 2006. Howell's § 2255 Motion was filed on October 1, 2012. The United States further argues that Howell is not entitled to equitable tolling. Howell has not shown that he has been diligent in pursuing his rights or that some extraordinary circumstance beyond his control prevented him from filing his § 2255 Motion. Therefore, the Court should deny Howell's § 2255 Motion as untimely. The government has gone further and briefly addressed the merits of Howell's claims of ineffective assistance of counsel.
On August 15, 2013, Howell filed a traverse (ECF No. 10). In addition to arguing the merits of his claims of ineffective assistance, Howell argues that both the background facts of his arrest and the fact that a mental evaluation was ordered suggest Howell's diminished capacity to appreciate the nature and consequences of his plea and the deadline for his § 2255 Motion. Howell concludes by reiterating his theory that there was no federal jurisdiction at all in his underlying criminal case. Therefore, the Court should equitably toll the statute of limitations and accept Howell's § 2255 Motion as timely.
STANDARD OF REVIEW
Dockery seeks habeas relief in this case pursuant to 28 U.S.C. § 2255(a). The statute reads as follows:
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to ...