United States District Court, E.D. Tennessee, Greeneville
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. 42]. 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.]. Also before the
Court is Petitioner's motion to “receive documents
out of [his] case file” [Doc. 40]. For the reasons
below, Petitioner's § 2255 motion [Doc. 42] will be
DENIED as untimely and DISMISSED WITH PREJUDICE. The request
for documents [Doc. 40] will be DENIED as moot.
2012, Petitioner pled guilty to federal bank robbery, in
violation of 18 U.S.C. § 2113(a) [Doc. 26]. The United
States Probation Office assigned Petitioner an advisory
Guideline range of 77 to 96 months' imprisonment
[Presentence Investigation Report (PSR); Docs. 29-33]. On
September 24, 2012, this Court sentenced Petitioner to 96
months' incarceration and three years' supervised
release [Doc. 35]. No direct appeal was taken. On January 23,
2017, Petitioner filed the instant § 2255 motion in
which he seeks vacatur or correction of his sentence in light
of the Johnson decision [Doc. 42].
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 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. The
timeliness of his petition depends on whether its submission
complied with 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, [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 October 8, 2012, fourteen days after the
Court entered judgment on September 24, 2012. See Sanchez
Castellano v. United States, 358 F.3d 424, 428 (6th Cir.
2004) (explaining unappealed judgment 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
relief under subsection (f)(1) began to run on that date,
expired on October 8, 2013.
to file the instant petition until January 23, 2017-more than
three and a half years after expiration of subsection
(f)(1)'s one-year window-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 issued 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 second or successive petition). Failure to
submit the petition prior to June 26, 2016, makes the filing
untimely under subsection (f)(3).
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.”).
extent that Petitioner claims that the did not know about the
Johnson decision until June of 2016 because he was
“out on state writ” and points to that fact as
grounds for equitable tolling [Doc. 42 p. 12], this Court
disagrees. These circumstances do not justify
Petitioner's failure to submit the instant 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). Accordingly, Petitioner's § 2255 motion
will be DENIED as untimely.
REQUEST FOR CM/ECF DOCUMENTS
addition to the petition, this Court is in possession of a
request to “receive documents out of [Petitioner's]
case file” [Doc. 40]. He requests copies of his plea
agreement and judgment in particular [Id.]. Review
of CM/ECF reveals that the Clerk's Office has already
mailed Petitioner copies of the appropriate request forms.
Accordingly, the request will be DENIED as moot.
reasons discussed, the petition [Doc. 42] will be DENIED and
DISMISSED WITH PREJUDICE. The request for documents [Doc. 40]
will be DENIED as moot. The Court will CERTIFY any appeal
from this action would not be taken in good faith and would
be totally frivolous. Therefore, this Court will DENY
Petitioner leave to proceed in forma pauperis on
appeal. See Rule 24 of the Federal Rules of
Appellate Procedure. Petitioner having failed to make a
substantial showing of the denial of a constitutional ...