Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parker v. United States

United States District Court, E.D. Tennessee

November 14, 2016

JAMES DALE PARKER, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 31]. During pendency of the action, Petitioner filed both a motion for leave to amend and proposed amendment [Docs. 34, 35]. The United States responded in opposition to the original petition on April 28, 2015 [Doc. 33] and proposed amendment on August 8, 2016 [Doc. 39]. Petitioner replied [Doc. 43]. For the reasons below, the motion for leave to amend and proposed amendment [Docs. 34, 35] will be GRANTED IN PART and DENIED IN PART. Petitioner's amended § 2255 motion [Docs. 31, 35] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         On June 28, 2011, a law enforcement agent downloaded child pornography from a shared folder on Petitioner's computer using a peer-to-peer file-sharing program [Doc. 15]. A subsequent search of Petitioner's residence uncovered a computer which contained approximately 92 still images and 265 videos containing child pornography [Id.]. Petitioner later admitted that he had been downloading child pornography onto his hard drive since 2010, and pleaded guilty to possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5) [Id.].

         Petitioner received a base offense level of eighteen for his child pornography offense under Section 2G2.2(a)(1) of the United States Sentencing Guidelines [Presentence Investigation Report (PSR) ¶ 18]. A two level enhancement for the use of file-sharing under Section 2G2.2(b)(3)(F) [Id. ¶ 19], a four level enhancement because some of the material portrayed sadistic or masochistic conduct under Section 2G2.2(b)(4) [Id. ¶ 20], a two level enhancement for the use of a computer under Section 2G2.2(b)(6) [Id. ¶ 21], a five level enhancement for having over 600 images under Section 2G2.2(b)(7)(D) [Id. ¶ 22], and a three-level reduction for acceptance of responsibility under Section 3E1.1 [Id. ¶¶ 28-29], resulted in a total offense level of thirty [Id. ¶ 30] and Guideline range of 97 to 120 months when combined with Petitioner's criminal history category I [Id. ¶ 53]. This Court sentenced Petitioner to 100 months' incarceration on March 31, 2014 [Doc. 30]. No appeal was taken.

         Less than one year later-on March 30, 2015-Petitioner submitted the instant petition for collateral relief [Doc. 31]; he followed that filing with a motion for leave to amend and proposed amendment on June 27, 2016 [Docs. 34, 35].

         The original filing articulates three theories of collateral attack. The first and second seek vacatur of Petitioner's conviction and sentence based on the fact that he lacked access to a law library during the period leading up to and after changing his plea and fact that he was “under the influence of methamphetamine at the time that he was arrested” and lacked sleep during the period leading up to his arraignment [Doc. 31 pp. 4-5]. The third challenges application of the enhancement under Section 2G2.2(b)(7)(D) by arguing that Petitioner “feels” there “may” have been fewer than 600 images [Id. at 7].

         The proposed amendment-submitted on June 27, 2016-contains two additional proposed grounds. The first argues that counsel rendered constitutionally deficient assistance by failing to raise the arguments asserted in the original petition at sentencing or on direct appeal [Doc. 35 p. 6]. The second challenges the validity of Petitioner's sentence in light of Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Id. at 8 (challenging his aggregate sentence in light of Johnson)].

         II. TIMELINESS OF PETITION AND AMENDMENT

         Section 2255(f) places a one-year statute of limitations on all petitions for collateral relief under § 2255 running from either: (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. 28 U.S.C. § 2255(f). This same provision governs the timeliness of later-filed amendments. Cameron v. United States, No. 1:05-cv-264, 2012 WL 1150490, at *3-6 (E.D. Tenn. April 5, 2012) (citing Olsen v. United States, 27 F. App'x 566 (6th Cir. Dec. 14, 2001)). Petitioner has failed to demonstrate that subsections (f)(2) or (f)(4) apply to his case. Specifically, he has not established that any illegal action by the government prevented him from making the timely petition or the existence of facts affecting his case that could not have previously been discovered through the exercise of due diligence. Timeliness of his petition [Doc. 31] and proposed amendment [Doc. 35] depends on whether those documents were submitted in compliance with subsections (f)(1) and (f)(3).

         A. Timeliness of Petition and Supplements Under Subsections (f)(1) and (f)(3)

         For purposes of the subsection (f)(1)-where the statutory period expires one year from the date on which the judgment of conviction becomes final-“a conviction becomes final at the conclusion of direct review.” Brown v. United States, 20 F. App'x 373, 374 (6th Cir. 2001) (quoting Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001)). Using the same reasoning, the Sixth Circuit has made clear that “when a federal criminal defendant does not appeal to the court of appeals, the judgment becomes final upon expiration of the period in which the defendant could have appealed to [such court], even when no notice of appeal was filed.” Johnson v. United States, 457 F. App'x 462, 465 (6th Cir. 2012) (quoting Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004)). Petitioner's conviction became final on April 14, 2014, fourteen days after the Court entered judgment on March 31, 2014. While the petition was submitted well within the one-year window that followed [Doc. 31 (filing date of March 30, 2015), the proposed amendment was not [Doc. 35 (filing date of June 27, 2016)].

         To the extent Petitioner attempts to rely on subsection (f)(3)'s independent one-year filing period for relief based on a newly-recognized right made retroactively applicable on collateral review to justify submission of the proposed amendment after March 31, 2015, only the second proposed claim-the challenge based on Johnson-arguably satisfies the conditions required to trigger the renewed limitations period. See 28 U.S.C. § 2255(f)(3) (requiring reliance on a newly recognized and retroactively applicable right); see also Welch v. United States, 136 S.Ct. 1257, 1265 (2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.”); In re Windy Watkins, 810 F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review and thus triggers § 2255(h)(2)'s requirement for certification of a second or successive petition). The motion for leave to amend and proposed amendment [Docs. 34, 35] will be GRANTED IN PART so far as they seek to include the Johnson-based request.

         B. Equitable Tolling of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.