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Ballentine v. United States

United States District Court, W.D. Tennessee, Western Division

November 16, 2016

TORRENCE BALLENTINE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          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 UNITED STATES 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 Torrence Ballentine (“Ballentine”), Bureau of Prisons register number 26760-076, an inmate at FCI Memphis in Memphis, Tennessee (§ 2255 Motion, ECF No. 1.) For the reasons stated below, Ballentine's § 2255 Motion is DENIED.

         BACKGROUND

         I. Criminal Case Number 14-20057

         On February 27, 2014, a federal grand jury sitting in the Western District of Tennessee returned an indictment against Ballentine, 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. Torrence Ballentine, 2:14-cr-20057-1-STA (W.D. Tenn.), ECF No. 1.) Ballentine decided to plead to the indictment and changed his plea to guilty at a change of plea hearing on July 24, 2014. On December 23, 2014, the Court sentenced Ballentine to a term of imprisonment of 30 months to be followed by three years' supervised release and imposed a special assessment of $100. The Clerk entered judgment (ECF No. 54) on December 29, 2014. Ballentine did not take a direct appeal. Following the entry of judgment, the Court entered an order on January 5, 2015, directing Ballentine to surrender to the Bureau of Prisons on February 10, 2015. The Court went on to grant three separate motions filed by Ballentine to delay his surrender date and set a final surrender date of September 30, 2015. The Court denied Ballentine's fourth motion to delay his surrender date.

         B. Civil Case 16-2189

         On March 14, 2016, Ballentine filed his pro se § 2255 Motion. Ballentine subsequently filed a number of additional motions: a motion to supplement (ECF No. 4) filed on April 8, 2016; a motion to clarify certain issues (ECF No. 5) filed on April 25, 2016; a motion to supplement (ECF No. 6) filed on May 20, 2016; and a motion for traverse and supplement (ECF No. 9) filed on June 3, 2016. On June 27, 2016, the Court entered an order denying Ballentine's motions and directing him to file an amended petition on the official form raising all of his claims for relief on the official form. Ballentine filed his amended petition (ECF No. 13) on July 14, 2016. Ballentine's amended petition raises three grounds for relief: (1) that the Court improperly enhanced his sentence for using a firearm in the commission of a felony; (2) that the Court miscalculated his criminal history points and sentenced Ballentine under a higher base offense level as a result; (3) that trial counsel was ineffective for failing to raise these errors with the Court at sentencing.

         On August 25, 2016, the Court directed the United States to respond to Ballentine's amended petition, and the government filed its response on August 30, 2016. In its response, the United States argues that Ballentine's § 2255 Motion is time-barred. The Court entered judgment against Ballentine on December 29, 2014. Ballentine did not appeal the judgment. As such, the judgment became final ten days later on January 7, 2015. Ballentine's one-year statute of limitations to file his § 2255 Motion began to run on that date and expired on January 7, 2016. Ballentine filed his initial petition on March 24, 2016, outside of 28 U.S.C. § 2255(f)(1)'s one-year limitations period. The government notes that Ballentine's amended petition asserts that the statute of limitations did not begin to run until Ballentine surrendered to serve his sentence in September 2015. The government argues that there is no authority supporting such a view of when the judgment against Ballentine became final. Therefore, the Court should dismiss the petition as untimely.

         STANDARD OF REVIEW

         Ballentine 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 collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         “A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.”[1] A § 2255 motion is not a substitute for a direct appeal.[2] “[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings.”[3] “Defendants must assert their claims in the ordinary course of trial and direct appeal.”[4] The rule, however, is not absolute:

If claims have been forfeited by virtue of ineffective assistance of counsel, then relief under § 2255 would be available subject to the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In those rare instances where the defaulted claim is of an error not ordinarily cognizable or constitutional error, but the error is committed in a context that is so positively outrageous as to indicate a “complete miscarriage of justice, ” it seems to us that what is really being asserted is a violation of due process.[5]

         Procedural default bars even constitutional claims that a defendant could have raised on direct appeal, but did not, unless the defendant demonstrates cause and prejudice sufficient to excuse his failure to raise the issues previously.[6] Alternatively, a defendant may obtain review of a procedurally defaulted claim by demonstrating his “actual innocence.”[7]

         Dismissal of a § 2255 motion is mandatory if the motion, exhibits, and the record of prior proceedings show that the petitioner is not entitled to relief.[8] If the habeas court does not dismiss the motion, the court must order the United States to file its “answer, motion, or other response within a fixed time, or take other action the judge may order.”[9] The petitioner is then entitled to reply to the government's response.[10] The habeas court may also direct the parties to provide additional information relating to the motion.[11] The petitioner has the burden of proving that he is entitled to relief by a preponderance of the evidence.[12]

         ANALYSIS

         “A motion filed pursuant to 28 U.S.C. § 2255 is subject to a one-year statute of limitations, with the limitations period beginning to run ...


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