United States District Court, E.D. Tennessee
RANDY J. DAVIS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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. 616]. The petition relies on Mathis v. United
States, 136 S.Ct. 2246 (2016), in which the Supreme
Court expounded on the categorical approach first announced
in Taylor v. United States, 495 U.S. 575, 599
(1990), and refined in Descamps v. United States,
133 S.Ct. 2276 (2013) [Id.; Doc. 617]. Also before
the Court is Petitioner's request that counsel be
appointed to assist in litigation of his collateral challenge
[Doc. 617 p. 1]. For the reasons below, Petitioner's
request for counsel will be DENIED and § 2255 motion
will be DENIED as untimely and DISMISSED WITH PREJUDICE.
2014, Petitioner was convicted of conspiring to manufacture
methamphetamine, in violation of 21 U.S.C. §§ 846
and 841((b)(1)(B) [Doc. 483]. The United States Probation
Office deemed Petitioner to be a career offender under
Section 4B1.1 of the United States Sentencing Guidelines
[See generally Presentence Investigation Report;
Doc. 400]; this Court agreed and sentenced Petitioner to 228
months' imprisonment followed by eight years'
supervised release on June 6, 2014 [Doc. 483]. No direct
appeal was taken.
a half years later-on December 9, 2016-Petitioner filed the
instant § 2255 motion seeking vacatur or correction of
his sentence in light of the Mathis decision [Doc.
616; Doc. 617 (suggesting that his prior drug conviction no
longer qualifies as controlled substance offense and that he
no longer has sufficient predicate convictions for
REQUEST FOR COUNSEL
addition to the petition, this Court is in possession of
Petitioner's request for the appointment of counsel to
assist in the litigation of his collateral challenge [Doc.
617 p. 1]. The appointment of counsel in a civil case is a
matter within the discretion of the Court. Childs v.
Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987). After
careful consideration of the type and nature of claim
identified, complexity of the collateral challenge proposed
and Petitioner's capability of raising the challenge
without assistance, this Court is of the opinion that counsel
is not necessary at this time. Mira v. Marshall, 806
F.2d 636 (6th Cir. 1986). Accordingly, Petitioner's
motion for appointment of counsel will be DENIED.
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).
Petitioner has failed to demonstrate that subsections (f)(2)
or (f)(4) apply. 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 due diligence. Timeliness thus depends on
whether submission complied with subsections (f)(1) and
Timeliness under Subsections (f)(1) and (f)(3)
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)). “[W]hen a federal criminal defendant does
not appeal to the court of appeals, the [direct review
concludes] 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 judgment of
conviction became final on June 20, 2014, fourteen days after
the Court entered judgment on June 6, 2014. See Sanchez
Castellano v. United States, 358 F.3d 424, 428 (6th Cir.
2004) (explaining unappealed judgment becomes final when the
period for filing a direct appeal has elapsed); Fed. R. App.
P. 4(b)(1)(A) (20012) (noting criminal defendant was required
to file a notice of appeal within fourteen days of entry of
the judgment appealed). The window under subsection (f)(1)
began to run on that date and expired on June 20, 2015.
to file the instant petition until December 9, 2016, means
that the motion is untimely under subsection (f)(1). To the
extent that Petitioner relies on subsection (f)(3), this
Court notes that triggering the renewed window contained in
that provision requires that the requested relief be based
on: (1) a right newly recognized by the Supreme Court and (2)
made retroactively applicable by the Supreme Court. 28 U.S.C.
§ 2255(f)(3). Because Petitioner has failed to
demonstrate that the Mathis decision satisfies the
first prong, the Court need not determine whether it
satisfies the second. The Mathis decision involved
application of the categorical approach first adopted by the
Supreme Court in Taylor and refined in the
Descamps decision to a new set of facts. See
Mathis, 136 S.Ct. at 2281 (citing “longstanding
principles” and noting that prior “cases
involving the modified categorical approach [had] already
made exactly [the same] point”); Id. at 2257
(“Our precedents make this a straightforward case. For
more than [twenty-five] years, we have repeatedly made clear
that application of the [Armed Career Criminal Act (ACCA)]
involves, and involves only, comparing elements.”). As
such, the holding of that case cannot be characterized as
articulating a “rights-creating rule, ” i.e., a
newly recognized right within the scope of subsection (f)(3).
See, e.g., Henderson v. United States, No.
16-00572, 2016 WL 4967898, at *2 (W.D. Mo. Sept. 16, 2016)
(“[The] Mathis [decision] does not present a
new rule or procedure.”); Leone v. United
States, No. 95-00960, 2016 WL 4479390, at *8-9 (S.D. Fla.
Aug. 24, 2016) (noting that the Mathis decision did
not articulate a “new rule” within the meaning of
subsection (f)(3)). As a result, Petitioner's § 2255
motion will be deemed untimely absent tolling of the
limitations period in subsection (f)(1).
Equitable Tolling of Subsection (f)(1)
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); Hall v. Warden, 662 F.3d 745, ...