United States District Court, E.D. Tennessee, Chattanooga
L. COLLIER, 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. 63.) 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 Court is also in
possession of Petitioner's request for the appointment of
counsel to assist in the litigation of his
Johnson-related collateral challenge. (Doc. 64.) For
the reasons below, Petitioner's request for counsel will
be DENIED as moot and his § 2255 motion will be DENIED
as untimely and DISMISSED WITH PREJUDICE.
2013, Petitioner pled guilty, pursuant to a written plea
agreement, to possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). (Docs. 40, 42.)
Based on one prior conviction for aggravated assault and two
prior convictions for possession of cocaine for resale, the
United States Probation Office deemed Petitioner to be an
armed career criminal subject to the ACCA's enhanced
fifteen-year mandatory minimum sentence. (Doc. 63 p. 4.) On
January 22, 2014, this Court sentenced Petitioner to 210
months' imprisonment followed by five years'
supervised release. (Doc. 56.) No direct appeal was taken.
than two-and-a-half years later-in September of
2016-Petitioner filed the instant petition seeking vacatur or
correction of his sentence in light of the Johnson
decision. (Doc. 63.)
REQUEST FOR THE APPOINTMENT OF COUNSEL
addition to the § 2255 motion, this Court is also in
possession of a pro se request for counsel to aid in the
litigation of his Johnson-based request for relief.
(Doc. 64.) By a standing order entered on February 11, 2016,
the Court has instructed the Federal Defender Services of
Eastern Tennessee (“FDSET”) to “identify
defendants with a claim for relief under
Johnson” and appointed FDSET to
“represent any defendant who seeks relief under §
2255 in light of Johnson.” See E.D.
Tenn. SO-16-02 (Feb. 11, 2016). Accordingly, the Court
already appointed counsel to look into whether Petitioner has
a Johnson claim and to supplement his filings if
appropriate. The request is DENIED as moot
in light of the fact that FDSET was already appointed.
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) and (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)). “[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 February 5, 2014, fourteen days
after the Court entered judgment on January 22, 2014. See
Sanchez Castellano v. United States, 358 F.3d 424, 428
(6th Cir. 2004) (explaining unappealed judgments of
conviction 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 for relief under subsection (f)(1)
began on that date, and expired on February 5, 2015.
to file the instant petition until September of
2016-one-and-a-half years after February 5, 2015-means that
the instant motion is untimely under subsection (f)(1). 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. Thus, 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 submit the instant petition
within the applicable window.
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 (6th
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.