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Bolton v. United States

United States District Court, E.D. Tennessee

January 23, 2017

BRAD BOLTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE

         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. 779]. The petition relies at least in part 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.]. On February 11, 2016, Federal Defender Services of Eastern Tennessee (“FDSET”) was appointed for the limited purpose of reviewing the case to determine whether or not Petitioner is eligible for collateral relief based on the Johnson decision. See E.D. Tenn. SO-16-02 (Feb. 11, 2016). Consistent with that appointment, FDSET filed a supplement in support of Petitioner's pro se request on June 28, 2016 [Doc. 787]. The United States responded in opposition on July 28, 2016 [Doc. 789]; FDSET filed a reply in turn [Doc. 790]. Petitioner has since submitted a pro se reply to the United States' response [Doc. 798] and supplement to his original pro se petition [Doc. 802-2]. Also before the Court are requests for an extension of time to file the pro se reply and leave to file the proposed supplement [Docs. 793, 802], as well as requests from the United States and FDSET that the case be held in abeyance until the parties have an opportunity to brief the issues [Docs. 784, 786]. For the reasons below, Petitioner's pro se request for an extension [Doc. 793] will be GRANTED nunc pro tunc and request for leave to supplement [Doc. 802] will be GRANTED. The United States' and FDSET's requests to hold the action in abeyance [Docs. 784, 786] will be DENIED as moot. Petitioner's supplemented § 2255 motion [Docs. 779, 787, 802-2] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2014, Petitioner pled guilty to conspiring to distribute at least 280 grams of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) [Doc. 476], which carried a statutory penalty of ten years to life imprisonment [Presentence Investigation Report (PSR) ¶ 99]. He “knowingly and voluntarily waive[d] the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255, ” with the exception of claims asserting ineffective assistance of counsel or prosecutorial misconduct unknown to him at the time of sentencing [Doc. 476 ¶ 10(b)].

         Based on prior Tennessee convictions for selling cocaine [PSR ¶ 53] and facilitating robbery [Id. ¶ 61], the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines with a corresponding Guideline range of 262 to 327 months' imprisonment [Id. ¶¶ 34, 100]. On September 10, 2014, this Court sentenced Petitioner to 262 months' imprisonment followed by five years' supervised release [Doc. 651]. Petitioner appealed, but the Sixth Circuit dismissed the appeal based on the knowing and voluntary waiver contained in Petitioner's plea agreement [Doc. 733]. The United States Supreme Court denied Petitioner's request for a writ of certiorari on October 22, 2015 [Doc. 754].

         Less than one year later-on May 9, 2016, Petitioner filed the instant collateral challenge.

         II. TIMELINESS OF PETITIONER'S CLAIMS

         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). 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)). Where a defendant pursues direct review through to a petition for certiorari in the United States Supreme Court, direct review concludes when the Supreme Court either denies the petition for certiorari or decides the case. Clay v. United States, 537 U.S. 522, 532 (2003). The Supreme Court denied Petitioner's request for a writ of certiorari on October 22, 2015 and the one-year statute of limitations under subsection (f)(1) began to run on that date. The instant petition was submitted well within the permissible one-year window for requesting timely collateral relief.

         III. RESOLUTION OF NON-DISPOSITIVE MOTIONS

         This Court is in possession of numerous non-dispositive motions, including: Petitioner's request for an extension of time to file a pro se reply to the United States' response [Doc. 793]; the United States' and FDSET's motions to defer proceedings until the parties have had an opportunity to fully brief the issues [Docs. 784, 786], and Petitioner request for leave to supplement his § 2255 petition with a request for reduction under Amendment 794 [Doc. 802].

         After Petitioner submitted his request for an extension of time, but before this Court was able to address that motion, Petitioner submitted his pro se reply [Doc. 798]. In light of this development, the request will be GRANTED nunc pro tunc and the Court will consider arguments contained in the pro se reply so far as they comport with Local Rules 7.1 and 7.2. Similarly, in the period after the parties submitted requests to hold the case in abeyance, FDSET filed a supplement in support, the United States responded in opposition, and both FDSET and Petitioner filed replies to that response [Docs. 787, 789, 790, 798]. Because the issues have now been fully briefed, this Court finds that it is no longer necessary to hold the case in abeyance pending the same. Both requests for deferral [Docs. 784, 786] will be DENIED as moot. The motion to supplement the original petition with a request for a “minor role” reduction [Doc. 802] will be GRANTED.

         IV. STANDARD OF REVIEW

         The relief authorized by 28 U.S.C. § 2255 “does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         V. ...


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