United States District Court, E.D. Tennessee, at Greeneville
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. 70, 83]. The United States
responded in opposition to the original § 2255 motion on
December 24, 2014 [Doc. 75], and the supplement on May 3,
2016 [Doc. 96]. Petitioner filed multiple pro se replies to
both responses [Docs. 76, 78, 101, 102]. Also before the
Court are Petitioner's pro se motions for an evidentiary
hearing [Docs. 84, 86], for the appointment of counsel [Doc.
92], to compel a response from the United States [Doc. 98],
and an "informal request for disposition" [Doc.
105]. For the reasons discussed below, the non-dispositive
motions [Docs. 84, 86, 92, 98, 105] will be DENIED and the
supplemented petition [Docs. 70, 83] will be DENIED and
DISMISSED WITH PREJUDICE.
enforcement charged both Petitioner and co-defendant Brandon
Stout with possessing a firearm as a felon [Doc. 1]. In
October of 2011, Petitioner signed a plea agreement with the
United States [Doc. 24], but this Court declined to accept
that agreement because Petitioner kept insisting at the
change of plea hearing that he did not understand the
proceedings and did not remember the underlying facts [Doc.
63]. Witnesses introduced the following facts at trial.
and Brandi Lane's residence in Russellville, Tennessee,
was burglarized on January 6, 2011 [Doc. 61at 3-4]. Jason
Lane testified that the items stolen included jewelry, a
Bible, and a Winchester shotgun that had been passed down to
him by his grandfather [Id. at 4, 6, 8]. Detective
Sergeant Statler Collins, of the Hamblen County Sheriff's
Office, responded to the Lanes' residence after the
burglary, and saw that someone had kicked in the front door
of the residence [Id. at 36-7]. Later that day,
Detective Collins participated in a traffic stop of a vehicle
containing Petitioner, Stout, and Crystal Hyde [Id.
at 37-8]. Stout was driving, Hyde was in the front passenger
seat, and Petitioner was in the rear passenger seat
[Id.]. During a search of the vehicle, Detective
Collins found a pillowcase containing games, jewelry, and a
Bible imprinted with the name of Jason Lane [Id. at
39]. He also found a latex glove and a black glove
[Id. at 41-2].
agreed to speak with investigators and subsequently testified
at trial [Id. at 42-3]. She said that she and four
other individuals, including Petitioner, went to the
Lanes' residence, and that Petitioner and Stout forced
the front door open and went inside [Id. at 13-16].
Hyde testified that Stout and Petitioner returned to the car
a few minutes later with “pillowcases full of stuff,
” and that one of the pillowcases contained a gun
[Id. at 16-17]. The group then traveled to a
“Mexican house” in Morristown, Tennessee, and
Petitioner and Stout took the pillowcases of stolen items
into the house [Id. at 19]. When they returned to
the car without the pillowcases, Stout gave Petitioner $40
cash and said he had the rest in his pocket [Id. at
20]. Hyde took law enforcement officers to the house where
Stout and Petitioner had taken the stolen items and, after
obtaining consent to search, the officers recovered several
of the stolen items, including the PlayStation 3, a Wii, Wii
games, DVDs, and a Winchester 410 shotgun [Id. at
44-45]. A firearms expert testified that the shotgun had
traveled in interstate commerce [Id. at 58].
in part on the foregoing testimony, on December 8, 2011, the
jury convicted Petitioner of possessing a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1)
[Doc. 40]. Based on five prior Tennessee convictions-three
for second-degree burglary [Presentence Investigation Report
(PSR) ¶¶ 28, 31], and two for aggravated burglary
[Id. ¶¶ 36, 42], the United States
Probation Office deemed Petitioner to be an armed career
criminal subject to the Armed Career Criminal Act's
(ACCA), 18 U.S.C. § 924(e), fifteen year statutory
minimum [Id. ¶ 22]. Because of that
classification and because the firearm was possessed
“in connection with” another violent felony, he
received a base offense level of thirty-four [Id.].
Petitioner's fifteen criminal history points and criminal
history category of VI yielded an advisory Guidelines range
of 262 to 327 months [Id. ¶¶ 53-54, 87].
Neither party objected [Doc. 49; Doc. 50; Doc. 64 at 5].
Petitioner's extensive criminal history, the United
States requested a sentence of 327 months' imprisonment
[Doc. 64 pp. 5-6]. Petitioner suggested that a
below-Guidelines sentence might be appropriate [Doc. 53].
This Court referenced the seriousness of the instant offense,
as well as Petitioner's lengthy and violent criminal
history, in that Petitioner, while still a teenager, had
seemingly “committed [him]self to a life of lack of
respect for the law” [Id. at 15-16].
Addressing the need to promote respect for the law, this
Court stated, “the only time that it appears that
[Petitioner was] not committing criminal offenses are periods
of time when [he was] in jail for some other offense”
[Doc. 64 p. 16]. Based on the number and type of offenses
committed, as well as Petitioner's repeated violations of
probation or other terms of release, this Court concluded
that it would take a “substantial term of imprisonment
to deter [Petitioner] from committing criminal
offenses” [Id. at 17-18].
to the need to protect the public, this Court stated that
Petitioner's repeated burglaries involving firearms
substantially increased the likelihood that death or serious
bodily injury could occur during his offenses, and “yet
[Petitioner had] been doing that for years [and did not] seem
to have been deterred from it at all” [Id. at
19]. This Court acknowledged that Petitioner's criminal
behavior was related to his alcoholism but found that the
risk of recidivism was high [Id. at 19-20].
“[S]tatistics suggest that the people who are most
likely to commit additional offenses in the future are the
people who are convicted of property-related offenses,
something in excess of 75 percent. So the chances are very
high that you will continue to commit these offenses, and the
public has an obvious right to be protected from that”
[Id.]. This Court said it saw nothing that would
warrant a downward variance from the Guidelines range
[Id. at 20]. Although Petitioner's history and
characteristics were significant, it was “not because
there's anything here to suggest mitigation, but because
of Petitioner's significant criminal history, including a
whole host of violent offenses, 15 total criminal history
points. Mental health issues, addiction issues, both of which
increase the risk of recidivism” [Id.]. This
Court added that it did not “see anything that would
suggest . . . a sentence below the guideline range”
[Id. at 20-21].
on the foregoing, this Court rejected Petitioner's
suggestion that his health problems-he claimed to be dying of
liver disease-warranted a lesser sentence [Id. at
21]. To the contrary, this Court reasoned that Petitioner
would likely be better off, from “a medical point of
view, ” if he were in custody “where [he could
not] drink alcohol the way [he had] in the past and . . .
[could] get appropriate medical treatment” instead
[Id.]. After reiterating that Petitioner's
medical condition did not warrant a variance, [id.
at 22], this Court imposed a bottom-of-the-Guidelines
sentence: 262 months' imprisonment [Id. at
22-23; Doc. 56]. Petitioner appealed, but the Sixth Circuit
affirmed his conviction, ACCA enhancement, and sentence [Doc.
67]. The Supreme Court denied Petitioner's request for a
writ of certiorari on April 1, 2014 [Doc. 69].
than one year later-on September 25, 2014, Petitioner filed
his original petition for collateral relief asserting several
grounds of legal error and ineffective assistance of counsel
[Doc. 70]. On June 26, 2015, the Supreme Court held that the
residual provision of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), was unconstitutionally vague in
Johnson v. United States, 135 S.Ct. 2551 (2015).
Nearly two years after submitting the original petition, but
less than one year after the Supreme Court decided
Johnson-February 22, 2016, Petitioner filed a
supplement with six discernable grounds for collateral
relief: (1) he no longer qualified for ACCA enhancement after
Johnson, (2) the use of prior state court
convictions to enhance his sentence violated Alleyne v.
United Sates, 133 S.Ct. 420 (2012); (3) counsel acted in
a constitutionally deficient manner when he failed to seek a
competency hearing, (4) counsel acted in a constitutionally
deficient manner when he “bias[ed] his own client in
front of the jury;” (5) counsel acted in a
constitutionally deficient manner when he failed to
“adversarially test” the United States's key
witness, and (6) the United States intentionally
“confused” the jury [Doc. 83].
REQUEST FOR THE APPOINTMENT OF COUNSEL
addition to the supplemented petition, this Court is in
possession of a pro se motion requesting the appointment of
counsel to assist Petitioner with litigation of his
collateral challenge, especially his ground for relief based
on Johnson [Doc. 92]. To the extent that he seeks
counsel to assist in litigation of his Johnson-based
challenge, that request will be DENIED as
moot in light of the fact that this Court already
appointed Federal Defenders Services of Eastern Tennessee
(FDSET) by Standing Order to identify and represent all
defendants in the Eastern District of Tennessee with a viable
argument for collateral relief based on Johnson.
E.D. Tenn. S.O. 16-02 (Feb. 11, 2016). To the extent that he
requests counsel to aid in litigation of his other grounds
for collateral relief, that request will be
DENIED because Petitioner has not
demonstrated that counsel is necessary to ensure that those
claims are fairly raised or heard. Mira v. Marshall,
806 F.2d 636 (6th Cir. 1986); see also Childs v.
Pellegrin, 822 F.2d 1382, 1284 (6th Cir. 1987)
(explaining that the appointment of counsel in a civil case
is a matter within the discretion of the district court).
TIMELINESS AND RELATION BACK OF CLAIMS
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. Specifically, 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 his supplement
depends on whether that document complies with the limitation
periods under subsections (f)(1) and (f)(3).
Timeliness of September 25, 2014 Petition
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 April 1, 2014 [Doc. 69]. The statute
of limitations for the provision began to run that same date
and expired on April 1, 2015. The original petition-filed on
September 25, 2014-falls safely within the permissible period
for requesting collateral relief [Doc. 70].
Timeliness of February 22, 2016 Amendment
the original petition, Petitioner filed the supplement to his
petition almost eleven months after the window for requesting
relief under subsection (f)(1) expired. To the extent that
Petitioner relies on subsection (f)(3)'s independent
filing period for newly-recognized rights made retroactively
applicable on collateral review as justification for
submitting the supplement after April 1, 2015, only his claim
for collateral relief based on Johnson 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). The fate of Petitioner's other
supplemental grounds for relief-his Alleyne,
ineffective assistance, and prosecutorial misconduct
claims-depend on whether the filing window under subsection
(f)(1) has been equitably tolled and, if not, whether those
untimely grounds relate back to one of Petitioner's
timely-filed grounds under Federal Rule of Civil Procedure
Equitable Tolling of the Statute of Limitations
2255(f)'s statute of limitations is not jurisdictional
and may be tolled under limited 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.”).
thorough review of the petition, supplement, replies, and
other pro se filings, this Court finds that Petitioner has
failed to put forth a single, extraordinary circumstance
justifying his failure to submit the supplement within the
one-year period allowed by subsection (f)(1). Compare
Stovall v. United States, No. 1:12-cv-377, 2013 WL
392467, at *3 (E.D.T.N. 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 pled facts indicating he had been separated from
his legal materials for an extended period of time due to
multiple detention transfers and an illness). Absent such a
showing, no tolling is warranted.
Relation Back Under Federal Rule of Civil Procedure
supplement is untimely, district courts look to Rule 15(c) to
determine whether the proposed claims “relate
back” to a timely, original pleading and are thus saved
from being time barred by expiration of the statute of
limitations. Mayle v. Felix, 545 U.S. 644, 656-57
(2005), overruled on other grounds by Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 562-63 (2007). A claim relates
back if it “ar[i]se[s] out of the [same] conduct,
transaction, or occurrence set forth or attempted to be set
forth in the original pleading.” Fed.R.Civ.P. 15(c)(2).
The Supreme Court rejected a broad reading of “conduct,
transaction, or occurrence” in the context of
post-conviction relief and explained an amended petition will
not relate back “when it asserts a new ground for
relief supported by facts that differ in both time and type
from those [in] the original pleading.” Felix,
545 U.S. at 650. In other words, “relation back depends
on the existence of a common ‘core of operative
facts' uniting the original and newly asserted
claims.” Id. at 658 (citations omitted).
not a single one of the untimely grounds for relief contained
in Petitioner's February 22, 2016 supplement share a
“core of operative fact” with a timely claim from
his original petition. Because these grounds are neither