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Newman v. United States

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

April 19, 2017

AMY NEWMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 [Doc. 237]. On February 11, 2016, this Court appointed Federal Defender Services of Eastern Tennessee (FDSET) for the limited purpose of determining whether Petitioner is entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015)-which held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague. E.D. Tenn. S.O. 16-2 (Feb. 11, 2016). After FDSET notified the Court of a conflict of interest, it appointed substitute CJA counsel [Docs. 238, 239]. Consistent with that appointment, counsel filed a supplement in support of Johnson-based relief [Doc. 240]. The United States responded in opposition on August 3, 2016 [Doc. 246], and Petitioner replied on August 10, 2016 [Doc. 247]. Petitioner field a second supplemented containing “new authority” on August 25, 2016 [Doc. 248]. Recently, the United States filed a motion to deny and dismiss the petition based on an intervening decision of the Supreme Court [Doc. 254]. Petitioner, through counsel, responded acknowledging that the intervening decision forecloses one claim, but requesting that the Court still consider the other [Doc. 259]. For the reasons below, the United States' motion to deny and dismiss [Doc. 254] will be GRANTED and Petitioner's supplemented § 2255 motion [Docs. 237, 240, 248] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2007, Petitioner pled guilty to conspiring to distribute at least five grams of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B), and possessing a firearm in furtherance of that drug-trafficking crime, in violation of § 924(c) [Doc. 35]. In her plea agreement, Petitioner “knowingly and voluntarily waive[d] the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255, ” with the sole exception of § 2255 motions raising “claims of ineffective assistance of counsel or prosecutorial misconduct” [Id. ¶ 13(b)].

         Petitioner faced a statutory penalty range of five to forty years' imprisonment for the drug offense and a mandatory consecutive term of five years up to life imprisonment for the § 924(c) offense [Presentence Investigation Report (PSR) ¶ 61]. Based on a prior Georgia burglary-of-a-dwelling conviction [Id. ¶ 32], and a prior Tennessee robbery conviction [Id. ¶ 40], the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines with an advisory Guideline range of 262 to 327 months' imprisonment [Id. ¶ 62]. The Court granted a motion for a downward departure pursuant to Section 5K1.1 and sentenced Petitioner to 151 months' imprisonment on July 18, 2008 [Doc. 114].

         Eight years later-on June 6, 2016, Petitioner filed a pro se petition for collateral relief containing two grounds: ineffective assistance of counsel; and entitlement to relief based on the Johnson decision [Doc. 237]. CJA counsel filed two supplements in support of Petitioner's request for Johnson-based relief [Docs. 240, 248]. The United States opposes the requested relief.

         On March 6, 2017, the Supreme Court issued Beckles v. United States, which held that the United States Sentencing Guidelines are “not amenable to vagueness challenges.” 137 S.Ct. 886, 894 (2017). Two weeks later, this Court entered an Order (1) explaining that Beckles necessarily meant that “Johnson . . . does not undermine sentences based on Guideline enhancements;” (2) instructing the parties to “file any motion that they want[ed] the Court to consider in conjunction with, or prior to, ruling on [the instant] petition[] on or before April 1, 2017;” and (3) requiring that responsive pleadings be filed on or before April 15, 2017 [Doc. 95]. On April 1, 2017, the United States filed a motion to dismiss Petitioner's Johnson-based challenge to his career offender designation in light of Beckles [Doc. 252]. Petitioner, though counsel, acknowledged that Beckles forecloses Johnson-based relief from Section 4B1.1, but requested that the Court nonetheless consider her contemporaneously-filed ineffective assistance claim [Doc. 254].

         II. TIMELINESS OF PETITION AND AMENDMENT

         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). Petitioner has failed to demonstrate that subsections (f)(2) or (f)(4) apply to her case. i.e., she has not established that any illegal action by the government prevented her from making the timely petition or the existence of facts affecting her case that could not have previously been discovered through the exercise of due diligence. As such, timeliness of the supplemented petition depends on whether or not Petitioner submitted the documents in compliance with subsections (f)(1) and (f)(3).

         A. Timeliness of Supplemented Petition Under 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)). Using the same reasoning, the Sixth Circuit has made clear that “when 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 conviction became final on August 1, 2008, fourteen days after the Court entered judgment on July 18, 2008. See Fed. R. App. Proc. 4(b)(1)(A)(i) (“In a criminal case, a defendant's notice of appeal must be filed in the district court within [fourteen] days after . . . the entry of . . . judgment.”). The window for requesting relief under that subsection expired on August 1, 2009, nearly seven years before Petitioner submitted the petition.

         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 supplement after August 1, 2009, 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 claim of ineffective assistance of counsel does not assert a newly recognized right and thus cannot rely on the one-year filing window under subsection (f)(3). Timeliness of the ineffective assistance claim depends on whether or not subsection (f)(1) was tolled.

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

         Section 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, ...


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