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Ross v. United States

United States District Court, E.D. Tennessee

November 22, 2016

JAY WALLACE ROSS, 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. 48]. The petition relies in part on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.; Doc. 49]. The United States responded in opposition [Doc. 52]; Petitioner replied in turn [Doc. 55]. During pendency of the motion, Petitioner submitted a request for leave to amend the original filing with both supplemental analysis and a novel claim for relief [Doc. 58]. For the following reasons, Petitioner's motion to supplement will be GRANTED IN PART and DENIED IN PART, and the petition will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         On April 28, 2008, a confidential informant informed law enforcement authorities that Petitioner, whom he knew as “Randy, ” had cocaine for sale [Presentence Investigation Report (PSR) ¶ 9]. At the officers' direction, the informant arranged to meet Petitioner and drive him to another location; officers then stopped the vehicle, ordered Petitioner and the informant out of the vehicle, and found approximately twenty ounces of cocaine on the floor of the vehicle where Petitioner had been sitting [Id.]. After being advised of his Miranda rights, Petitioner admitted that he owned the drugs in the vehicle and directed the officers to two other locations, where they found over forty ounces of cocaine and seven firearms, including a semi-automatic pistol [Id.].

         On June 13, 2008, Petitioner pled guilty, as charged, without the benefit of a plea agreement, to possessing with intent to distribute at least 500 grams of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A); possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and possessing a firearm as a fugitive from justice, in violation of 18 U.S.C. § 922(g)(2) [Doc. 15]. Based on a prior federal conviction for drug trafficking and an Ohio robbery conviction, the United States Probation Office deemed Petitioner to be a career offender subject to enhancement under Section 4B1.1 of the United States Sentencing Guidelines; Petitioner received a bottom-of-the-range 262-month term of incarceration, which this Court ordered he serve consecutive to an undischarged state-imposed term of incarceration for the Ohio robbery offense [Doc. 19].

         Petitioner appealed and the Sixth Circuit remanded the case with instructions that this Court “better explain its rational for imposing the fully consecutive sentence [Doc. 23 p. 10]. On remand, this Court reimposed the same 262-month term of incarceration, but ordered that it be served concurrently with Petitioner's Ohio sentence [Doc. 37]. Petitioner appealed again, but the Sixth Circuit affirmed his conviction and sentence [Doc. 44]. The Supreme Court denied Petitioner's request for a writ of certiorari on October 7, 2014 [Doc. 47].

         Slightly over one year later-on October 13, 2015-Petitioner submitted the instant petition asserting two grounds for collateral relief: the first claims counsel was constitutionally deficient because he failed to challenge Petitioner's § 924(c) conviction for sufficiency of evidence (Ground One) [Doc. 49 pp. 3-9]; the second seeks vacatur of Petitioner's sentence in light of the Johnson decision (Ground Two) [Id. at 9-15 (suggesting Ohio robbery is no longer a crime of violence and thus Petitioner no longer qualifies as a career offender)].

         On September 30, 2016, Petitioner filed a request for leave to (1) supplement his arguments in support of Ground Two in light of the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016) [Doc. 58 pp. 2-9 (suggesting Mathis confirms that Ohio robbery is no longer a crime of violence)], and (2) introduce an entirely novel claim alleging ineffective assistance based on trial counsel's failure to challenge the § 922(g)(1) or § 922(g)(2) convictions as a violation of double jeopardy [Id. at 9-10 (suggesting that double jeopardy prohibits multiple convictions under § 922(g) based on a “single instance of possession”)].

         II. TIMELINESS AMENDMENTS

         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 and proposed amendment depends on whether those documents were submitted in compliance with subsections (f)(1) and (f)(3).

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

         For purposes of 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)). Where a defendant pursues direct review through to a petition for certiorari in the United States Supreme Court, direct review concludes when the Supreme Court either denies the petition for certiorari or decides the case. Clay v. United States, 537 U.S. 522, 532 (2003). Petitioner's conviction became final for purposes of subsection (f)(1) on October 7, 2014, the date on which the Supreme Court denied his request for a writ of certiorari; the window for requesting timely relief under subsection (f)(1) began to run on that date and expired one year later on October 7, 2015.

         Failure to submit the instant petition until October 14, 2015-seven days after expiration of the one year period on October 7, 2015-makes Petitioner's motion untimely under subsection (f)(1). 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 petition after October 7, 2015, only Ground Two-the challenge to his sentence in light of 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).[1] Because Ground One does not assert a “newly recognized right” and thus cannot rely on subsection (f)(3), the timeliness of that claim depends on whether Petitioner has established grounds for tolling of the limitations window under subsection (f)(1).

         1. Equitable Tolling of ...


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