United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
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
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.
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].
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.
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].
TIMELINESS OF PETITION AND AMENDMENT
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).
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)). 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.
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.
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, ...