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Smith v. United States

United States District Court, E.D. Tennessee

January 13, 2017




         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. 50]. During pendency of the action, Petitioner filed a motion for leave supplement [Doc. 60]. The United States responded in opposition to the original petition on October 17, 2014 [Doc. 58] and proposed supplement on August 29, 2016 [Doc. 64]. Petitioner replied to both [Docs. 59, 69]. For the reasons below, Petitioner's motion for leave to amend [Doc. 60] will be GRANTED IN PART and DENIED IN PART. His amended § 2255 motion [Docs. 50, 60] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         On April 19, 2011, Knoxville police officers executed a search warrant at Petitioner's residence after a confidential source purchased crack cocaine from Petitioner at that location [Doc. 25 ¶ 4]. During the search, officers seized 35.45 grams of crack cocaine, a loaded 9mm handgun, $995 cash from a car alarm box in the bedroom; digital scales, a holster, and 9mm ammunition were found elsewhere in the residence [Id.]. Shortly thereafter, Petitioner waived his Miranda rights and admitted to selling crack cocaine [Id.].

         On September 11, 2011, a federal grand jury charged Petitioner with possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1); possessing with intent to distribute at least twenty-eight grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); and possessing a firearm in furtherance of that drug trafficking crime, in violation of 18 U.S.C. § 924(c) [Doc. 1]. The United States filed a timely notice of its intent to enhance Petitioner's sentence, pursuant to 21 U.S.C. § 851, based on two prior felony drug convictions [Doc. 4]. Petitioner pled guilty as charged on March 16, 2012 [Docs. 25, 26].

         In calculating the applicable Guidelines range, the United States Probation Office assigned Petitioner a base offense level of twenty-six citing the drug quantity stipulated in his plea agreement [Presentence Investigation Report (PSR) ¶¶ 15, 17]. Based on the same two prior felony drug convictions referenced in the § 851 notice, Petitioner was deemed to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines and assigned an enhanced offense level of thirty-seven [Id. ¶¶ 23, 34, 45]. After a three-level reduction for acceptance of responsibility, Petitioner's received a total offense level of thirty-four [Id. ¶¶ 24- 26], which yielded an advisory Guideline range of 262 to 327 months' imprisonment when combined with his enhanced criminal history category of VI [Id. ¶¶ 53, 54, 73 (noting that Petitioner was subject to a ten-year statutory mandatory minimum for the drug offense and a consecutive five-year statutory mandatory minimum for the § 924(c) offense)].

         Petitioner filed a motion for downward variance [Doc. 35]; the United States responded in opposition [Doc. 37]. On July 16, 2013, this Court granted Petitioner's motion and imposed an aggregate sentence of 240 months' incarceration-concurrent terms of 120 months for the § 922(g) offense and 180 months for the drug offense, followed by a statutorily-mandated consecutive term of 60 months for the § 924(c) offense [Doc. 46]. No direct appeal was taken.

         Petitioner committed the instant offense-Smith II-while on supervised release for a separate federal conviction-Smith I [PSR ¶¶ 10, 45, 52], and, as a result, Petitioner's probation officer requested revocation of supervised release in the earlier case [E.D. Tenn. Case No. 3:01-cr-43-TAV-HBG-2].[1] Petitioner admitted that his conviction in Smith II amounted to a violation of supervision in Smith I, but requested that any revocation sentence in the latter run concurrent to his aggregate term of incarceration in the former [Smith I, Doc. 137]. On July 19, 2013, this Court imposed a revocation sentence of 46 months in Smith I-34 months running concurrent with, and 12 months running consecutive to, the term imposed in Smith II [Smith I, Doc. 139].

         On July 11, 2014-a little over one year after this Court imposed judgment in Smith II, Petitioner submitted his original petition for collateral relief [Doc. 50]. The petition articulates four grounds: erroneous application of the career offender enhancement based on a prior drug conviction which was too old and involved too small a quantity of narcotics [Doc. 50 p. 4; Doc. 51 pp. 2-13]; the absence of evidence demonstrating his firearm was used “in furtherance of” a drug trafficking crime [Doc. 50 p. 5; Doc. 51 pp. 14-18]; imposition of a judgment without subject matter jurisdiction [Doc. 50 p. 7; Doc. 51 pp. 19-20]; and violation of the constitutional prohibition against double jeopardy [Doc. 50 p. 8; Doc. 51 pp. 20-23]. In addition to these enumerated grounds, Petitioner suggests throughout the petition that counsel's failure to raise the same arguments at sentencing amounted to ineffective assistance of counsel [See generally Doc. 51].

         Nearly two years later-on June 20, 2016, Petitioner filed a motion for leave to supplement the original petition with several additional grounds. The proposed grounds include: ineffective assistance of counsel for failure to investigate a litany of matters and failure to seek a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) [Doc. 60 pp. 9-18 (listing twenty-four novel issues that counsel should have investigated, including whether the informant was paid, police policy and procedure for making controlled substance buys, evidentiary chain of custody, and whether police collected any GPS data)]; improper categorization as a career offender in light of the Supreme Court's intervening decision Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual provision of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Id. at 19-25]; and actual innocence of the § 924(c) offense in light of the Johnson decision [Id. at 26-32].


         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. i.e., 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. As such, timeliness of the petition [Doc. 50] and proposed supplement [Doc. 50] depends on whether or not Petitioner submitted those documents in compliance with subsections (f)(1) and (f)(3).

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

         For 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)). Using the same reasoning, the Sixth Circuit has made clear that “when a federal criminal defendant does not appeal to the court of appeals, [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 conviction became final on July 30, 2013, fourteen days after the Court entered judgment on July 16, 2013. See Fed. R. App. Proc. 4(b)(1)(A)(i) (“In a criminal case, a defendant's notice of appeal must be filed in the district court within [fourteen] days after . . . the entry of . . . judgment.”). While the petition was submitted well within the one-year window that followed [Doc. 50 (filing date of July 11, 2014)], the proposed amendment was not [Doc. 60 (filing date of June 20, 2016)].

         To the extent Petitioner attempts to rely on subsection (f)(3)'s independent one-year filing period for newly-recognized rights made retroactively applicable on collateral review as justification for submitting the supplement after July 30, 2014, only the second and third proposed grounds-both challenges linked to the Johnson decision-arguably satisfy the conditions required to trigger that provision. 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).[2] By contrast, the first proposed ground does not assert a newly recognized right. Petitioner's motion for leave to supplement [Doc. 60] will be GRANTED IN PART so far as it seeks to include the Johnson-based challenges.

         B. Equitable Tolling of Subsection (f)(1)

         Section 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 original filing, motion for leave to supplement, and Petitioner's replies [Docs. 50, 59, 50, 69], fail to reveal a single extraordinary circumstance justifying Petitioner's failure submit the first proposed ground within the one-year window permitted by subsection (f)(1). 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). Because the first proposed claim is untimely, the merits of that ground will only be considered if it relates back to a timely-filed collateral challenge.

         C. Relation Back Under Federal Rule of Civil ...

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