United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER, UNITED STATES DISTRICT JUDGE
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]. 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.
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.].
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,
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.].
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].
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].
TIMELINESS OF SUPPLEMENTED 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
Petitioner's supplemented § 2255 motion depends on
whether or not its submission complied with subsections
(f)(1) and (f)(3).
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)). 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].
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
Equitable Tolling of Subsection (f)(1)
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 ...