United States District Court, E.D. Tennessee, Winchester
S. MATTICE, JR. 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. 29]. 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.]. The United States
responded in opposition to collateral relief on August 1,
2016 [Doc. 31]. Petitioner did not reply and the time for
doing so has lapsed. E.D. Tenn. L.R. 7.1, 7.2. For the
reasons below, the petition [Doc. 29] will be DENIED as
untimely and DISMISSED WITH PREJUDICE.
2013, Petitioner pled guilty to possessing a firearm as a
felon, in violation of 18 U.S.C. § 922(g)(1) [Doc. 17].
Based on two prior Tennessee second-degree burglary
convictions [Presentence Investigation Report (PSR)
¶¶ 26-27], eight prior Tennessee Class D burglary
convictions [Id. ¶ 30], a prior Florida
burglary-of-a-structure conviction [Id. at ¶
29], and a prior Florida burglary-of-a-dwelling conviction
[Id.], the United States Probation Office deemed
Petitioner to be an armed career criminal under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and, in
accordance with that designation, sentenced Petitioner to 180
months' incarceration followed by five years'
supervised release [Doc. 27]. No direct appeal was taken.
July 5, 2016, Petitioner filed the instant § 2255 motion
in which he seeks vacatur or correction of his sentence in
light of the Johnson decision [Doc. 29].
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. 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 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, the [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 April 2, 2014, fourteen days after
the Court entered judgment on March 19, 2014. See Sanchez
Castellano v. United States, 358 F.3d 424, 428 (6th Cir.
2004) (explaining unappealed judgments 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 April 2, 2015.
petition contains a singular ground for relief, arguing the
Johnson decision removed an unspecified number of
his prior convictions from the definition of “crime of
violence” under § 924(e)(2) and, as a result,
requests vacatur of his 180-month sentence [Doc. 29].
to file the instant petition until July 5, 2016-a year after
expiration of subsection (f)(1)'s one-year window on
April 2, 2015-means that the instant motion is untimely under
subsection (f)(1). To the extent that Petitioner relies
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 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.”).
review of the petition, the Court concludes that Petitioner
has failed to put forth a single extraordinary circumstance
justifying the failure to submit his 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). The petition
will be DENIED.
reasons discussed, the petition [Doc. 29] will be DENIED and
DISMISSED WITH PREJUDICE. 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 right,