United States District Court, W.D. Tennessee, Eastern Division
BRATLEY D. MCNEAL Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DISMISSING § 2255 MOTION, DENYING MOTION
FOR COUNSEL,, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
DANIEL BREEN UNITED STATES DISTRICT JUDGE.
the Court is the amended pro se 28 U.S.C. §
2255 motion of Petitioner, Bratley D. McNeal to vacate, set
aside, or correct his sentence (the "Petition").
(Docket Entry ("D.E.") 7.) Respondent, the United
States of America, responded on July 16, 2016, asserting that
the Petition was untimely and should be dismissed. (D.E. 12.)
Although McNeal requested and was granted a motion for
extension of time to reply to the Government's response
(see D.E. 14), he did not do so. Following a review
of the record, the Court agrees that the motion is
January 20, 2009, McNeal was indicted in Case Number
l:09-cr-10004 on charges of being a felon in possession of a
firearm, possession with the intent to distribute cocaine
base, and possession of a firearm during and in relation to a
drug trafficking crime, in violation of 18 U.S.C §
922(g), 21 U.S.C. § 841(a)(1), and 21 U.S.C. §
924(c)(1)(2), respectively. (United States v.
McNeal, No. 1:09-cr-010004-JDB-l ("Cr. Case"),
D.E. 1.) On March 30, 2010, he pleaded guilty as charged.
(Cr. Case, D.E. 45.) The defendant received a total effective
sentence of 120 months incarceration to be followed by a
four-year term of supervised release. (Cr. Case, D.E. 51.)
The Court sentenced Petitioner on July 19, 2010
(id.), and entered judgment that same day (Cr. Case,
filed an initial petition challenging his conviction on
January 17, 2014, over three years after judgment was entered
in his criminal case. (D.E. 1.) Upon direction from the
Court, he filed an amended petition on the official form on
June 20, 2014. (D.E. 7.) Therein, he contended that he
received ineffective assistance of counsel, that he was
actually innocent of the charge of possessing a firearm in
relation to a drug trafficking offense, and that his Fifth
and Sixth Amendment rights were violated. (Id. at
PagelD 56-59.) In a section labeled "Timeliness of
Motion, " McNeal acknowledged that his conviction had
become final over one year before the Petition was filed, but
he asserted that it was not time-barred based on "newly
discovered evidence of ineffectiveness of counsel."
(Id. at PagelD 64.) The purportedly new evidence is
the disbarment of his attorney, Javier M. Bailey, by the
Tennessee Supreme Court in 2012. (Id.)
Petitioner asserted that he was including a memorandum and
affidavit with the amended motion, (id.), he failed
to do so. However, he did submit a supporting affidavit when
he filed his initial motion (D.E. 1-1), along with an exhibit
detailing his attorney's disbarment (D.E. 1-2), which the
Court has reviewed.
response, the United States asserts that McNeal has not
"come forward with any colorable evidence . . . that the
running of the § 2255 limitations period commenced later
than the date on which his conviction became final."
(D.E. 12 at PagelD 84.) Alternatively, Respondent argues that
the Petition is substantively without merit. (Id. at
Section 2255(a) provides that
[a] prisoner in custody under sentence of a court . . .
claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws
of the United States, ... or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). The statute does not
"encompass all claimed errors in conviction and
sentencing." United States v. Addonizio, 442
U.S. 178, 185 (1979); Meirovitz v. United States,
688 F.3d 369, 370 (8th Cir. 2012). Rather, a petitioner must
allege '"(1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3)
an error of fact or law that was so fundamental as to render
the entire proceeding invalid.'" Shaw v.
United States, 604 F.App'x 473, 476 (6th
Cir.) (quoting Weinberger v. United States, 268 F.3d
346, 351 (6th Cir. 2001)), cert, denied. 135 S.Ct.
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") amended 28 U.S.C. §§ 2244(b)
and 2255 to limit a defendant to his direct appeal and one
collateral attack, filed within one year of the date his
conviction became final. 28 U.S.C. § 2244, et
seq. Subsection (f) of § 2255 provides:
1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(1) the date on which the judgment of conviction becomes
(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
(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