United States District Court, W.D. Tennessee, Western Division
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255
S. THOMAS ANDERSON, District Judge.
Before the Court is Johnathon Granger's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("§ 2255 Motion"), filed October 9, 2012. (ECF No. 1). Granger, Bureau of Prisons register number XXXXX-XXX, an inmate at the United States Penitentiary in Pollock, Louisiana, "asks that his case/conviction/sentence be vacated and remanded as well as voided for violations to his rights under the Federal constitution which were violated." ( Id. ). The United States responded to the Motion on March 21, 2013. (ECF No. 6). For the reasons stated below, Granger's Motion is DENIED.
On March 24, 2009, a grand jury charged Granger in a single count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Redacted Indictment, United States v. Granger, 2:09-cr-20113-STA-1 (W.D. Tenn.), (ECF No. 1). Granger entered a plea of not guilty on April 15, 2009. (ECF No. 12). On October 7, 2009, Granger entered into a negotiated plea agreement with the United States. (ECF Nos. 25, 26). Granger agreed "that he is pleading guilty because he is in fact guilty of the offenses charged in COUNT ONE of the indictment." (ECF No. 26). The Court held a plea colloquy, and the Court accepted Granger's guilty plea. (ECF No. 27). On February 26, 2010, the Court sentenced Granger to 198 months incarceration and 4 years supervised release. (ECF No. 39). The Court entered judgment on March 3, 2010. (ECF No. 39).
Although he does not state the date on which he deposited the paper in the prison's internal mailing system,  Granger signed his § 2255 Motion on October 3, 2012. The Motion was then filed with the Court on October 9, 2015. Granger's § 2255 Motion asserts five grounds for relief: (1) improper use of prior juvenile convictions to enhance his sentence; (2) failure of counsel to file a notice of appeal; (3) ineffective assistance of counsel; (4) violation of due process of law; and (5) another claim of ineffective assistance of counsel. Taken together, Granger asserts ineffective assistance of counsel for his counsel's failure to file an appeal, failure to challenge the Presentence Report calculations, failure to establish Granger's innocence, for coercing Granger to accept a "bogus plea offer, " and for failing to file "necessary motions." Granger's § 2255 motion, however, is time-barred.
I. Statute of Limitations and Equitable Tolling
In its Answer, the United States argues that Granger's § 2255 Motion is time-barred. Section 2255 imposes a one-year period of limitation, which runs from the latest of the following:
(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 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.
When a criminal defendant does not take a direct appeal, "an unappealed district court judgment of conviction becomes final' ten days after the entry of judgment, at least where the defendant has not actually sought an extension of appeal time for good cause or excusable neglect." Granger did not take a direct appeal; therefore, his conviction became final March 13, 2010-ten days after the entry of judgment. The period of limitation ran from that date until March 13, 2011. Even assuming that Granger deposited his § 2255 Motion in the prison's mail system on the day that he declared the information in his Motion true-October 3, 2012-his Motion is nearly a year and a half late. Granger does not allege that subsections (2), (3), or (4) apply to his claims.
In his Motion, Granger offers an explanation for late filing. He states that he believed that his attorney had filed a notice of appeal and that he should await a ...