United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's supplemented motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 [Docs. 81, 82, 87, 89]. The petition contains
numerous grounds for relief, including one based 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 United States responded in opposition to the original
petition on January 14, 2014 [Doc. 85]; and Petitioner
replied in turn on February 14, 2014 [Doc. 86]. Noting that
Petitioner's entitlement to relief based on the
Johnson decision hinged on that decision's
impact in the Guideline context, the United States requested
that the Court stay resolution of the supplemented petition
pending Beckles v. United States, No. 15-8544, 2017
WL 855781, at *7 (U.S. March 6, 2017) [Doc. 91]. The Court
agreed and stayed the action pending the Beckles
decision on November 1, 2016 [Doc. 95]. For the reasons that
follow, the instant action [E.D. Tenn. Case No. 3:13-cv-676]
will be UNSTAYED and the supplemented § 2255 motion will
be DENIED and DISMISSED WITH PREJUDICE.
January 5, 2005, Petitioner pled guilty to conspiring to
distribute and posses with intent to distribute at least five
hundred grams of cocaine, in violation of 21 U.S.C.
§§ 846 and 841(a)(1) [Doc. 37]. Petitioner faced an
enhanced statutory penalty range of ten years' to life
imprisonment under 21 U.S.C. § 841(b)(1)(B) because he
had a prior Tennessee conviction for selling cocaine
[Presentence Investigation Report (PSR) ¶ 50]. That same
drug offense and a prior Tennessee conviction for aggravated
assault caused the United States Probation Office to deem
Petitioner a career offender under Section 4B1.1 of the
United States Sentencing Guidelines with an advisory
Guideline range of 267 to 327 months' imprisonment
[Id. ¶¶ 27, 32, 37, 51]. This Court
sentenced Petitioner to 226 months' imprisonment [Doc.
67]. Petitioner appealed, but the Sixth Circuit affirmed his
conviction and sentence [Doc. 77]. The Supreme Court denied
Petitioner's request for a writ for certiorari on October
22, 2007 [Doc. 80].
six years later-on November 12, 2013, Petitioner filed a pro
se petition [Docs. 81, 82]. FDSET filed supplements based on
Descamps v. United States, 133 S.Ct. 2276 (2013), on
June 19, 2014 [Doc. 87], and the Johnson decision on
June 13, 2016 [Doc. 89].
petition contains seven grounds for relief: alleged
insufficiencies in the indictment (Ground One) [Doc. 82 pp.
3-5]; entry of an unknowing and involuntary guilty plea
(Ground Two) [Id. at 5-9]; ineffective assistance of
counsel during the plea negotiation process (Ground Three)
[Id. at 9-12]; representation by counsel with an
unspecified conflict of interest (Ground Four) [Id.
at 12-13]; improper enhancement in violation of Alleyne
v. United States, 133 S.Ct. 2276 (2013) (Ground Five)
[Id. at 13-20]; improper designation as a career
offender in light of the Descamps decision (Ground
Six) [Id. at 20-22; Doc. 87]; and improper
designation as a career offender in light of the
Johnson decision (Ground Seven) [Doc. 89].
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. 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 and later
amendments depend on whether their submission complied with
subsections (f)(1) and (f)(3).
Timeliness of Supplemented Petition Under Subsections (f)(1)
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 statute of limitations
began to run on that date. The window for requesting relief
under subsection (f)(1) expired on October 22, 2008, five and
a half years before Petitioner submitted his pro se petition
for collateral relief [Docs. 81, 82], six and a half years
before FDSET filed a supplement based on the
Descamps decision [Doc. 87], and nine years before
FDSET filed a supplement based on the Johnson
decision [Doc. 89].
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 his grounds for relief after
October 22, 2008, only the claim for collateral relief based
on the Johnson decision even arguably satisfies 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). By
contrast, the other grounds for relief do not assert newly
recognized rights and thus cannot rely on the one-year filing
window under subsection (f)(3). As a result, timeliness of the
six non-Johnson claims depends on whether or not
subsection (f)(1) was tolled.
Equitable Tolling of Subsection (f)(1)
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 her 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 [s]he has been pursuing
[her] rights diligently, and (2) that some extraordinary
circumstance stood in [her] 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.”).
in the pro se petition, supplements or CM/ECF record does
Petitioner provide any justification for his failure to
submit Grounds One, Two, Three, Four, Five, or Six 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 ...