United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER, UNITED STATES DISTRICT JUDGE
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 43]. The petition relies 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.]. The United States
responded in opposition to collateral relief on October 3,
2016 [Doc. 49]. Petitioner did not reply and the time for
doing so has lapsed. E.D. Tenn. L.R. 7.1, 7.2. Also before
the Court are Petitioner's motions for leave to proceed
in forma pauperis [Doc. 44], leave to file a
memorandum in support [Doc. 45], and an Order directing the
Clerk's Office to send him several documents related to
his underlying criminal case [Doc. 46]. For the reasons
below, the petition [Doc. 43] will be DENIED as untimely and
DISMISSED WITH PREJUDICE. The remaining motions [Docs. 44,
45, 46] will be DENIED as moot.
2013, Petitioner pled guilty to possessing marijuana with
intent to distribute, in violation of 21 U.S.C. §
841(a)(1), (b)(1)(D), and possessing cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) [Doc. 19]. He proceeded to trial for, and was
eventually convicted by a jury of, possessing firearms in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c) [Docs. 22, 23]. This Court sentenced
Petitioner to an aggregate term of 101 months'
imprisonment-concurrent 41-month terms for the drug offenses
and a statutorily-mandated consecutive term of 60 months for
the firearms offense [Doc. 36].
appealed, but the Sixth Circuit affirmed his convictions and
sentence on November 12, 2014 [Doc. 41]. More than 21 months
later, on August 29, 2016, Petitioner filed the instant
motion seeking correction of his sentence in light of the
Johnson decision [Doc. 43].
TIMELINESS OF PETITION
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. The timeliness of his petition
depends on whether its submission complied with subsections
(f)(1) or (f)(3).
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 but
does not seek a writ of certiorari, the conviction becomes
final at expiration of the time for seeking such a writ.
See Clay v. United States, 537 U.S. 522, 525 (2003)
(explaining that a conviction affirmed on appeal becomes
final when the period for seeking a writ of certiorari
expires); U.S. Sup. Ct. R. 13(3) (providing ninety-day period
for requesting a writ of certiorari, running from the date of
the Court of Appeal decision). Petitioner's conviction
became final for purposes of subsection (f)(1) on February
10, 2015, ninety days after the Sixth Circuit opinion. His
window for relief expired on February 10, 2016.
to file the instant petition until nearly eight months after
the window under subsection (f)(1) expired means that the
instant motion is untimely under that
provision. To the extent that Petitioner relies on
subsection (f)(3)'s independent filing period for relief
based on a newly-recognized right made retroactively
applicable on collateral review, the Court notes that the
provision's one-year window runs from the date that the
asserted right was recognized by the Supreme Court. 28 U.S.C.
§ 2255(f)(3). For purposes of the instant case, the new
right on which Petitioner relies was first recognized in the
Johnson decision, which the Supreme Court decided on
June 26, 2015. Johnson, 135 S.Ct. at 2551. The
statutory window for requesting relief based upon that
decision under subsection (f)(3) expired one year later-on
June 26, 2016. See Welch v. United States, 135 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 successive petition).
Again, Petitioner failed to comply.
2255(f)'s statute of limitations is not jurisdictional
and may be tolled under limited, extraordinary circumstances.
Dunlap v. United States, 250 F.3d 101, 1007 (6lth
Cir. 2001). Used sparingly, a petitioner bears the burden of
establishing that equitable tolling applies to his case,
see Jurado v. Burt, 337 F.3d 638, 642 (6th Cir.
2003); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir.
2004), and must show “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing,
” Holland v. Florida, 130 S.Ct. 2549, 2562
(2010); Hail v. Warden, 662 F.3d 745, 750 (6th Cir.
2011); see also Jurado, 337 F.3d at 643
(“Absent compelling equitable considerations, a court
should not extend limitations by even a single day.”).
review of the petition, the Court concludes that Petitioner
has failed to put forth a single extraordinary circumstance
justifying the failure to submit his collateral challenge
within the window permitted by § 2255(f). Compare
Stovall v. United States, No. 1:12-cv-377, 2013 WL
392467, at *3 (E.D.T.N. Jan. 31, 2013) (rejecting request for
equitable tolling of subsection (f)(1) in absence of evidence
illustrating a diligent pursuit of the rights asserted);
with Jones v. United States, 689 F.3d 621, 627 (6th
Cir. 2012) (granting request for equitable tolling where the
petitioner pled facts indicating he had been separated from
his legal materials for an extended period of time due to
multiple detention transfers and an illness). The petition
will be DENIED.
ANALYSIS ON THE MERITS
the instant petition had been filed prior to expiration of
the renewed limitations window under subsection (f)(3), the
sole claim set forth therein would fail as a matter of law.
argument that Petitioner no longer possesses predicate
offenses sufficient to support categorization as an armed
career criminal under the ACCA, career-offender under Section
4B1.1 of the United States Sentencing Guidelines, or an
enhanced base offense level under Section 2K2.1(a) of the
same fails because the record conclusively demonstrates that