United States District Court, E.D. Tennessee, Chattanooga
L. COLLIER UNITED STATES DISTRICT JUDGE
the Court is Petitioner's supplemented motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 [Docs. 100, 110]. He bases the request on
Descamps v. United States, 133 S.Ct. 2251 (2015),
and Johnson v. United States, 135 S.Ct. 2551 (2015).
The United States responded in opposition to the original
petition on September 11, 2014 [Doc. 106], and the
supplemental filing on July 18, 2016 [Doc. 113]. Petitioner
replied to the latter on August 17, 2016 [Doc. 114]. For the
reasons that follow, the supplemented § 2255 motion
[Docs. 100, 110] will be DENIED and DISMISSED WITH PREJUDICE.
2005, Petitioner pleaded guilty to conspiring to distribute
at least five kilograms of cocaine, in violation of 21 U.S.C.
§§ 846 and 841(a)(1), (b)(1)(A) [Presentence
Investigation Report (PSR) ¶¶ 2, 5]. Due to a prior
federal drug conviction, Petitioner faced an enhanced
statutory imprisonment range of twenty years to life
[Id. ¶ 51]. Based on the same prior drug
conviction and a prior Texas conviction for “burglary
of a habitation, ” the United States Probation Office
deemed Petitioner to be a career offender under Section 4B1.1
of the United States Sentencing Guidelines with a Guidelines
range of 262 to 327 months' imprisonment [Id.
¶¶ 28, 53]. After granting the United States'
motion for downward departure, this Court sentenced
Petitioner to 188 months' incarceration [Doc. 74].
Petitioner appealed, but the Sixth Circuit affirmed his
conviction and sentence on direct appeal [Doc. 92]. The
Supreme Court declined Petitioner's request for a writ of
certiorari on October 1, 2007 [Doc. 95].
years later, on June 20, 2014, Petitioner filed the instant
§ 2255 motion claiming that he no longer qualified as a
career offender in light of Descamps [Doc.
100]. Two years later, on June 10, 2016,
Petitioner filed a supplement challenging his career offender
designation based on Johnson, which held that the
residual provision of the Armed Career Criminal Act (the
“ACCA”), 18 U.S.C. § 924(e), was
unconstitutionally vague [Doc. 110]. As supplemented, the
petition contains two theories for relief: (1) Petitioner is
no longer a career offender because his prior Texas
conviction for burglary of a habitation does not qualify as a
crime of violence under the modified categorical approach as
explained in Descamps [Doc. 100]; and (2)
Johnson extends to the identically worded Guidelines
residual clause, his prior Texas conviction for burglary of a
habitation only qualified as a crime of violence under that
provision, and he lacks sufficient predicates for enhancement
without that conviction [Doc. 110].
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. 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. Timeliness of the supplemented petition thus
depends on its 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)). 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). Petitioner's conviction became final for purposes
of subsection (f)(1) on October 7, 2007. The statute of
limitations for the provision began to run that same date and
expired on October 7, 2008, five-and-a-half years before
Petitioner filed the original petition based on
Descamps [Doc. 100], and seven-and-a-half years
before he submitted the supplemental claim for relief based
on Johnson [Doc. 110].
extent Petitioner relies 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 and supplement
after October 7, 2008, only his claim for collateral relief
based on Johnson 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
Equitable Tolling of Subsection (f)(1)
2255(f)'s statute of limitations is not jurisdictional
and may be tolled under extraordinary circumstances.
Dunlap v. United States, 250 F.3d 101, 1007 (6lth
Cir. 2001). 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.”).
of the original filing, supplement, and reply fail to reveal
any extraordinary circumstance justifying Petitioner's
failure to challenge this Court's use of the modified
categorical approach to categorize his prior Texas conviction
for burglary of a habituation as a crime of violence within
the one year window allowed under subsection (f)(1).
Compare Stovall v. United States, No. 1:12-cv-377,
2013 WL 392467, at *3 (E.D. Tenn. 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 pleaded facts indicating he had
been separated from his legal materials for an extended
period of time due to multiple detention transfers and an
illness). Because the Descamps-based claim is
untimely, it will be dismissed.