United States District Court, E.D. Tennessee, Knoxville
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 (“§ 2255 Motion”) [Doc.
278]. The United States responded in opposition
to the petition [Doc. 281]; Petitioner replied in turn [Doc.
288]. During the pendency of the action, Petitioner also
filed a motion for leave to supplement his § 2255 motion
[Doc. 290]; a motion for summary judgment [Doc. 298]; and a
motion to reduce sentence pursuant to 18 U.S.C. 3582(c) [Doc.
following reasons, Petitioner's motion for leave to
supplement [Doc. 290] and his motion for summary judgment
[Doc. 298] will be DENIED as moot. Petitioner's §
2255 motion [Doc. 278] will be will be DENIED and DISMISSED
WITH PREJUDICE. The Court, by separate memorandum opinion and
order, will address the merits of Petitioner's motions
for reduction in sentence [Doc. 299].
facts surrounding Petitioner's convictions were recited
in Petitioner's plea agreement and Presentence Report
(“PSR”) as follows:
[Petitioner] was a crack cocaine distributor in Roane County,
Tennessee, and had been a regular purchaser of crack cocaine
from co-defendant [Katrina] Clemons during the conspiracy
period. Law enforcement interviewed [Petitioner] on that
basis at which time he made a Mirandized statement and
admitted to purchasing around a kilogram of crack cocaine
from Clemons over the course of the conspiracy. Independent
investigation puts that amount in excess of 1.5 kilograms.
The parties agree that [Petitioner] bought and distributed
between 840 grams and 2.8 kilograms of crack cocaine during
the course of the conspiracy, and that this range is the
amount of drugs for which he will be held responsible at
November 2, 2010, in a superseding indictment, a federal
grand jury in the Eastern District of Tennessee charged
Petitioner with conspiring to distribute and possess with
intent to distribute at least fifty grams of cocaine base
(“crack”), in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 846 (Count One) [Doc. 17-3].
Petitioner pleaded guilty to that charge pursuant to a plea
agreement with the United States [Doc. 185]. As part of the
plea agreement, Petitioner admitted to “[conspiring] to
distribute and [possessing] with the intent to distribute 50
grams of a mixture or substance containing a detectable
amount of cocaine base (‘crack')”
[Id. ¶ 1(a)]. Additionally, Petitioner agreed
that he was pleading guilty because he was “in fact
guilty” [Id.]. Petitioner also
“voluntarily waive[d] [his] right to file any motions
or pleadings pursuant to 28 U.S.C. § 2255 or to
collaterally attack [his] conviction(s) and/or resulting
sentence” except in cases “of ineffective
assistance of counsel or prosecutorial misconduct not known
to [Petitioner] by the time of the entry of judgment”
[Id. ¶ 13 (b)].
Court, on September 19, 2011, sentenced Petitioner to 168
months' imprisonment, a term at the bottom of his
Guidelines range [Doc. 214]. On appeal, the Sixth Circuit
affirmed Petitioner's conviction and sentence [Doc. 222].
October 7, 2013, Petitioner filed the present motion pursuant
to 28 U.S.C. § 2255 [Doc. 278].
TIMELINESS OF PETITION
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the one-year statute of limitations
applicable to collateral challenges under § 2255 runs
from the latest of: (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). In the case
of a direct appeal, a petitioner's conviction becomes
final upon either denial of certiorari or expiration of the
ninety-day period in which to seek such review. Clay v.
United States, 537 U.S. 522, 525, 532 (2003).
has failed to establish or even assert 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. The timeliness of Petitioner's original motion
thus hinges on its compliance with § 2255(f)(1) or
subsection (f)(1), Petitioner's one-year period for
requesting relief expired on September 19, 2013, one year
after his conviction became final for purposes of that
section on September 19, 2012 [Doc. 268]. The original
petition-filed on October 7, 2013-falls outside the
permissible period for requesting collateral relief and is
thus untimely under § 2255(f)(1).
argues, however, that his petition is timely under §
2255(f)(3) because the statute of limitations period began to
run from the date of the Supreme Court decision in Dorsey
v. United States, 132 S.Ct. 2321 (2012) or, in the
alternative, from the date of the Supreme Court decision in
Alleyne v. United States, 133 S.Ct. 2151 (2013). The
Court disagrees. If the applicable one-year statute of
limitations period started to run on the date of the
Dorsey decision, Petitioner's § 2255 motion
would still be untimely. The Supreme Court decided
Dorsey on June 21, 2012. Thus, the window in which
to file a timely § 2255 motion would expire one year
after that date, on June 21, 2013. Because Petitioner filed
his § 2255 motion on October 7, 2013, more than three
months after the one-year statute of limitations period to
file under Dorsey expired, Petitioner's motion
under a renewed statute of limitations triggered by
Dorsey would still be untimely.
attempt to rely on Alleyne to trigger subsection
(f)(3)'s independent one-year filing period for relief
also fails. Sixth Circuit precedent dictates that the
Alleyne decision does not apply retroactively to
cases on collateral review. In Re Mazzio, 756 F.3d
487, 488 (6th Cir. 2014) (“[A]ny new rule announced in
Alleyne has not been made retroactive to cases on collateral
review by the Supreme Court.”); Myrick v. United
States, No. 4:11-CR-13, 2015 WL 5514681, at *2 (E.D.
Tenn. Sept. ...