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Short v. United States

United States District Court, E.D. Tennessee, Greeneville

April 5, 2017




         Before the Court is Petitioner's supplemented pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 40, 45].[1] He bases the request for relief 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.]. The United States responded in opposition to the original petition on August 4, 2014 [Doc. 42], and the supplemented petition on August 19, 2016 [Doc. 51]. Petitioner replied to both responses in turn [Docs. 43, 52]. For the reasons that follow, Petitioner's supplemented pro se § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         While at Petitioner's home to arrest him for a parole violation, Morristown police officers observed .22 and .357 caliber shell casings lying in plain sight in the hallway [Doc. 10 ¶ 4]. Once Petitioner was in custody, the officers asked if there were any firearms in the residence [Id.]. He responded in the affirmative, noting that there was a rifle under the blankets on his bed and a loaded revolver under the same [Id.]. Officers recovered the rifle, revolver, and live ammunition [Id.]. After being advised of his Miranda rights, Petitioner claimed that the firearms belonged to his daughter, but admitted that, if fingerprinted, his fingerprints would show up on them [Id.].

         Based on the foregoing events, Petitioner pled guilty to possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), which subjected him to a ten-year statutory maximum sentence under 18 U.S.C. § 924(a)(2) [Presentence Investigation Report (PSR) ¶¶ 2, 78]. Based on a prior Tennessee conviction for evading arrest, the United States Probation Office assigned Petitioner a base offense level of twenty under Section 2K2.1(a) of the United States Sentencing Guidelines [Id. ¶¶ 17, 44].[2] A three-level reduction for acceptance of responsibility resulted in a total offense level of seventeen [Id. ¶¶ 24-26]. Combined with his criminal history category of VI, Petitioner's total offense level yielded an advisory Guideline range of 51 to 63 months' imprisonment [Id. ¶¶ 53, 79]. This Court imposed a sentence at the bottom of that range [Doc. 25]. Petitioner appealed, but then moved to voluntarily dismiss that appeal [Doc. 39]. The Sixth Circuit granted his request on January 29, 2014 [Id.].

         In May of 2015, Petitioner filed his original petition for collateral relief [Doc. 40]. On June 1, 2016, FDSET filed a supplement seeking relief based on the Johnson decision [Doc. 45].

         The supplemented § 2255 petition contains two grounds for collateral relief. First, Petitioner argues that counsel was constitutionally deficient because he failed raise the fact that the weapons recovered from Petitioner's home belonged to Petitioner's daughter as a defense to the § 922(g) charge [Doc. 40 ]. Second, he argues that the Johnson decision removed Tennessee felony evading arrest from Section 4B1.2(a)'s definition of “crime of violence” and that, without that conviction, he lacks the sufficient predicate for base offense level enhancement [Doc. 45].


         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 Petitioner's supplemented § 2255 motion depends on whether or not its submission complied with subsections (f)(1) and (f)(3).

         A. 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)). 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). In alternative, when a defendant pursues a direct appeal but does not petition the United States Supreme Court for certiorari, his judgment becomes final when the time expires for filing such petition-ninety days after entry of the intermediate appellate court's judgment. Id.; see also Supreme Court Rule 13(3) (“The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate.”). Petitioner's conviction became final for purposes of subsection (f)(1) ninety days after the Sixth Circuit granted his motion to voluntarily dismiss-on April 30, 2014. The window for requesting timely relief under subsection (f)(1) expired one year later-on April 30, 2015, roughly one month before Petitioner filed the original pro se petition [Doc. 40], and more a year before FDSET filed the Johnson-based supplement [Doc. 45].

         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 petition after April 30, 2015, 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, Petitioner's ineffective assistance of counsel claim does not assert a newly recognized right and thus cannot rely on the one-year filing window under subsection (f)(3). As such, timeliness of that claim depends on whether Petitioner has established a basis for equitably tolling subsection (f)(1).

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

         Section 2255(f)'s statute of limitations is not jurisdictional and, as a result, the filing windows are subject to equitable tolling under limited and 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, 6 ...

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