United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
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.
The United States responded in opposition to the petition
[Doc. 43]. During the pendency of the § 2255 Motion,
Petitioner also filed a motion to dismiss for failure to
state a claim, and for reconsideration [Doc. 37]. The United
States did not respond to this Motion.
following reasons, Petitioner's § 2255 Motion [Doc.
28] will be DENIED and DISMISSED WITH PREJUDICE. The
Petitioner's motion to dismiss for failure to state a
claim and for reconsideration [Doc. 37] will be DENIED AS
4, 2009, in an indictment, a federal grand jury in the
Eastern District of Tennessee charged Petitioner with being a
felon in possession of a firearm and with possessing an
unregistered short-barreled shotgun [Doc. 1]. Petitioner
pleaded guilty to both charges [Doc. 16].
February 4, 2010, the Court sentenced Petitioner to 110
months' imprisonment, a term at the bottom of his
Guidelines range [Doc. 24]. The Petitioner did not file an
appeal of his conviction or sentence.
March 17, 2014, Petitioner filed the present motion pursuant
to 28 U.S.C. § 2255 [Doc. 28].
TIMELINESS OF PETITION
one-year statute of limitations is applicable to collateral
challenges under § 2255. The one year period 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).
present case, Petitioner's judgment became final on
February 18, 2010. Accordingly, the § 2255 limitation
period in this case ended on February 18, 2011. Petitioner
filed his § 2255 Motion more than three years later, on
March 11, 2014. Therefore, the § 2255 Motion is
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 clearly expired well prior to filing the
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
circumstances 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 § 2255 Motion leads the Court to conclude
that Petitioner has failed to identify a single extraordinary
circumstance capable of explaining his failure to comply with
the window for requesting timely collateral relief under
§ 2255(f). Accordingly, his § 2255 motion is
THE MOTION TO DISMISS
addition to the § 2255 motion addressed above,
Petitioner filed a motion to dismiss for failure to state a
claim [Doc. 37]. In this motion, the Petitioner asks the
Court to reconsider its Order [Doc. 34] directing the United
States to file a response to the § 2255 Motion, and to
"dismiss" any response which might be filed. The
Court finds, however, that its order directing the United
States to respond to the § 2255 Motion was correct ...