United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
Petitioner, Leslie Benson (“Benson”), pursuant to
a plea agreement [Doc. 52],  entered a guilty plea to one
count of possession with intent to distribute fifty (50)
grams or more of cocaine base [Docs. 1, 51]. This Court
sentenced Benson, who had a prior felony drug conviction, to
a sentence of 180 months' imprisonment. Judgment was
entered on January 7, 2011 [Doc. 56]. Benson did not appeal
this conviction or sentence.
the Court now is Petitioner's pro se motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 [Doc. 59]. This motion was filed on June
6, 2013, and therefore it is untimely. Benson later filed
“supplements” to the § 2255 Motion [Docs.
64, 66, 75, 76]. The Government filed a response in
opposition [Doc. 82], asserting that the § 2255 Motion,
along with all “supplements” thereto, are
untimely and must be denied on that basis.
the § 2255 Motion remained pending, Benson moved to
amend it to contest his guideline range in light of
Johnson v. United States, 135 S.Ct. 2551 (2015),
which invalidated the Armed Career Criminal Act's
residual clause as unconstitutionally vague [Docs. 75, 85].
The Government responded in opposition, arguing that Benson
was ineligible for relief under Johnson because the
Supreme Court had expressly limited its holding in that case
to the Armed Career Criminal Act [Docs. 82, 86]. The
Government, however, also acknowledged that the Supreme Court
was poised to determine, in Beckles v. United
States, whether Johnson could be applied to the
Sentencing Guidelines and could be applied retroactively on
collateral review [Doc. 86]. This Court decided to defer
ruling on Benson's § 2255 Motion until
Beckles was decided [Doc. 88].
Supreme Court has now held that the advisory Sentencing
Guidelines are not subject to vagueness challenges and that
§ 4B1.2's residual clause is not void for vagueness.
Beckles v. United States, 137 S.Ct. 886 (2017).
Accordingly, Petitioner's Johnson-based claim
cannot justify relief and must be denied on the merits.
Petitioner's Johnson-based claims were rendered
meritless, Petitioner moved [Doc. 90] for leave to amend his
original § 2255 Motion [Doc. 59]. The Government
responded by filing a Motion [Doc. 92] to dismiss the
original § 2255 Motion, and any further purported
amendments thereto, as untimely. Thereafter, the Petitioner,
without waiting on the Court's ruling on his Motion for
Leave to file an Amendment to his Motion, filed a document
titled Amended Motion Pursuant To Title 18 U.S.C. § 2255
obtain relief pursuant to 28 U.S.C. § 2255, a petitioner
must demonstrate “(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.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (quoting Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He
“must clear a significantly higher hurdle than would
exist on direct appeal” and establish a
“fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
one-year period of limitation applies to § 2255 motions,
and that period runs from the date on which the judgment of
conviction becomes final. 28 U.S.C. § 2255(f)(1);
see Dodd v. United States, 545 U.S. 353, 357 (2005)
(“In most cases, the operative date from which the
limitation period is measured [is] the date on which the
judgment of conviction becomes final.” (internal
citation omitted)). In the present case, Petitioner's
conviction became final on January 19, 2011, at the
expiration of the time for filing a notice of appeal.
See Fed. R. App. P. 4(b)(1)(A) (establishing a
fourteen-day period for defendants to file a notice of appeal
from a criminal judgment); Sanchez-Castellano v. United
States, 358 F.3d 424 (6th Cir. 2004) (noting that when a
defendant does not appeal, “the judgment becomes final
upon the expiration of the period in which the defendant
could have appealed”). Petitioner had until January 19,
2012, to file a timely § 2255 motion, but he did not
file until May 28, 2013. Accordingly, his motion is untimely.
See Rule 3(d), Rules Governing Section 2255
Proceedings (providing that the filing date for a pleading
from an incarcerated defendant is the date the pleading was
placed into the prison mail system).
one-year statute of limitations for § 2255 motions is
not a jurisdictional bar and may be tolled under limited,
extraordinary circumstances. The Court agrees with the
Government that Petitioner has not established any basis for
equitable tolling to be granted. Dunlap v. United
States, 250 F.3d 1001, 1007 (6th Cir. 2001). Equitable
tolling is “used sparingly by federal courts, ”
and “[t]ypically . . . applies only when a
litigant's failure to meet a legally-mandated deadline
unavoidably arose from circumstances beyond that
litigant's control.” Jurado v. Burt, 337
F.3d 638, 642 (6th Cir. 2003). A petitioner bears the burden
of establishing that equitable tolling applies to his case.
Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004).
To satisfy that burden, he 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, 560 U.S.
631, 649 (2010); accord Hall v. Warden, 662 F.3d
745, 750 (6th Cir. 2011). The Court finds that the Petitioner
has made no such showing.
alleges that, based on a letter he received from the Federal
Defender Services in March 2012, he was “under the
impression” that counsel had been appointed to
represent him for purposes of filing a § 2255 motion.
However, the letter never mentioned § 2255 and instead
referenced “the November 2011 Amendment to the U.S.
Sentencing Guidelines.” [Doc. 63, Response at 1-3;
see also R. 63-1, March 2012 Letter from Federal
Defender Services]. Moreover, the period in which petitioner
could have timely filed a § 2255 motion had expired
several months before he received that letter. Petitioner
cannot show that his untimeliness stemmed from any reasonable
reliance upon the representations in the letter.
“Absent compelling equitable considerations, a court
should not extend limitations by even a single day.”
Herman v. United States, No. 3:04-cr-131, 2010 WL
419986, at *3 (E.D. Tenn. Jan. 28, 2010) (quoting
Jurado, 337 F.3d at 643).
cites recent Supreme Court decisions in Alleyne and
Descamps to argue that those citations render his
previously-filed claims timely because the limitations period
runs from “the date on which the right asserted was
initially recognized by the Supreme Court, ” rather
than the date his conviction became final. 28 U.S.C. §
2255(f)(3). It is true that petitioner first mentioned
Alleyne and Descamps within one year after
those cases were decided by the Supreme Court. These cases,
however, did not create new rules which apply to him on
collateral review, and petitioner's citations to
Alleyne and Descamps do not render his
the Court finds that because the claims presented in the
Motion [Docs. 59, 64, 66, 75, 76] are untimely and therefore
lack merit, Petitioner is not entitled to relief pursuant to
28 U.S.C. § 2255. Moreover, the Petitioner's Motion
For Leave to Amend states no grounds for allowing an amended
§ 2255 Motion to be filed, as any claim indicated
therein would not be timely. Therefore, the Motion is not
well-taken and must be denied. Likewise, the Petitioner's
purported Amended Motion is untimely and asserts no claims of
newly established rights or any claims that relate back.
See Howard v. United States, 533 F.3d 472, 475-76
(6th Cir. 2008) (any motion to amend or supplement a §
2255 motion “will be denied” if filed after
expiration of the limitation period unless the proposed
amendment “relates back” to the original,
timely-filed pleading). For this same reason, the
Government's Motion [Doc. 92] must be granted. A hearing
is unnecessary in this case. Accordingly, the Court will
DENY Petitioner's motion [Doc. 59] and
Supplements [Docs. 64, 66, 75, 76] and Motion for Leave [Doc.
90] and “Amended Motion” [Doc. 93]. The
Government's Motion to Dismiss [Doc. 92] is
addition, the Court will CERTIFY that any
appeal from this action would not be taken in good faith and
would be totally frivolous. Therefore, this Court will
DENY Petitioner leave to proceed in
forma pauperis on appeal. See Fed. R. App. P.
24. Petitioner has failed to make a substantial showing of
the denial of a constitutional right, therefore, a
certificate of appealability SHALL NOT
ISSUE. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).