United States District Court, W.D. Tennessee, Western Division
ORDER DENYING MOTION UNDER 28 U.S.C. 2255; ORDER DENYING CERTIFICATE OF APPEALABILITY; AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
JON P. McCALLA, District Judge.
On August 17, 2012, Defendant Junior Jermaine Johnson, Bureau of Prisons registration number XXXXX-XXX, an inmate at USP Atwater in Atwater, California, filed a Motion pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion").
For the reasons stated below, the § 2255 Motion is DENIED, and a certificate of appealability is DENIED. The Court also finds that an appeal would not be taken in good faith. Leave to appeal in forma pauperis is DENIED.
On June 13, 2007, a federal grand jury indicted Johnson in a one-count Indictment charging him with possession with intent to distribute less than five hundred (500) grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count One). (United States v. Johnson, No. 2:07-cr-20173-JPM (W.D. Tenn.), ECF Nos. 1-3.) On January 23, 2008, Johnson pleaded guilty to the Indictment pursuant to a written plea agreement. ( Id., ECF Nos. 36, 38.) On May 1, 2008, Johnson was sentenced to a term of incarceration of 210 months, 5 years of supervised release, and to pay a special assessment of $100.00. ( Id., ECF Nos. 44, 45, 46.) Judgment was entered on May 2, 2008. ( Id., ECF Nos. 45, 46.)
On February 12, 2009, the Government filed a Motion to Reduce Sentence. ( Id., ECF No. 49.) The Court held a hearing to resentence Johnson on June 26, 2009. ( Id., ECF No. 62.) The Court resentenced Johnson to 110 months of incarceration and 5 years of supervised release. (Id.) An Amended Judgment was entered on June 26, 2009. ( Id., ECF Nos. 63, 64.)
Johnson filed his § 2712 Motion on August 17, 2012. (ECF No. 1.) On August 17, Johnson filed a Motion to Supplement Pleadings. (ECF No. 2.) On November 1, 2012, the Court denied the Motion to Supplement Pleadings and directed the United States to respond. (ECF No. 3.) On December 10, 2012, Johnson filed a Motion for Default Judgment. (ECF No. 4.) The Court denied the Motion for Default Judgment on December 12, 2012, and once again directed the United States to respond. (ECF No. 5.) The United States filed its response on February 14, 2013. (ECF No. 7.)
"The Antiterrorism and Effective Death Penalty Act amended 28 U.S.C. § 2255 by adding a time-limit provision for Section 2255 motions. As amended, Section 2255 precludes a prisoner from filing Section 2255 motions more than one year after the conviction becomes final." Hyatt v. United States, 207 F.3d 831, 832 (6th Cir. 2000). Movant's § 2255 Motion was filed well after the one-year deadline. He argues, however, that the Court should equitably toll the deadline in this case. (See ECF No. 1-1.) Johnson argues that equitable tolling is appropriate because he diligently pursued his rights as soon as he had access, on July 8, 2011, to a prison law library with resources relevant to federal law. (See id. at PageID 16-18.)
When determining whether equitable tolling is appropriate, the Sixth Circuit applies a five-factor balancing test, which weighs:
(1) the petitioner's lack of [actual] notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) the petitioner's diligence in pursuing his rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.
Moore v. United States, 438 F.Appx. 445, 449 (6th Cir. 2011) (quoting Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006)). "Where, as here, the petitioner does not claim ignorance of the filing requirement, the court must focus its inquiry on the petitioner's diligence and the reasonableness of his ignorance of the effect of his delay.'" Id . (quoting King v. Bell, 378 F.3d 550, 553 (6th Cir. 2004)). Although Johnson avers that he diligently pursued his rights once he had access to adequate legal research tools, he filed his § 2255 Motion more than a year after the date he states that he gained access to those resources.
Johnson's judgment became final in May 2008. Even under the facts as Johnson describes them, he is not entitled to equitable tolling. Accordingly, ...