United States District Court, E.D. Tennessee, Chattanooga
L. COLLIER, UNITED STATES DISTRICT JUDGE.
Petitioner, Tyshawn Hill (“Hill”), has filed a
motion under 28 U.S.C. § 2255 to vacate, set aside or
correct sentence [Doc. 93].
FACTUAL AND PROCEDURAL HISTORY
Hill was convicted of conspiring to distribute at least five
kilograms of cocaine in violation of 21 U.S.C. §§
846, 841(a)(1), (b)(1)(A) and possessing with intent to
distribute at least five kilograms of cocaine in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A). [Doc. 1]. Based on
prior convictions out of New York, Petitioner was deemed a
career offender (PSR ¶¶ 25-32, 59). Further, based
on the prior drug convictions in New York, Petitioner was
also subject to an enhanced mandatory life sentence under 21
U.S.C. § 841(b)(1)(A), of which the Government gave
proper notice [Doc. 40] and which the Court imposed [Docs.
Petitioner appealed his conviction [Doc. 64] and the Sixth
Circuit affirmed Petitioner's conviction on February 6,
2007 [Doc. 74]. The Government's brief indicates that the
Sixth Circuit “rejected Petitioner's request for
rehearing en banc on May 25, 2007, ” but only
cites the Sixth Circuit opinion, United States v.
Sanford, 476 F.3d 391, 391 (6th Cir. 2007), which is the
underlying appeal. There is no indication in the record of a
request or rejection of Petitioner's request for
rehearing en banc. However, that issue is irrelevant
as Petitioner did not seek a writ of certiorari from the
Supreme Court at all, let alone within the ninety (90) day
period from a conviction affirmed on appeal.
in Petitioner's case, the time for seeking certiorari
expired either on May 7, 2007, or August 23, 2007, -ninety
(90) days after the Sixth Circuit's affirmance of
Petitioner's conviction or ninety (90) days after the
Sixth Circuit's denial of Petitioner's request for
rehearing en banc. The fact remains that, at the
latest, the one year time limit to file a timely § 2255
motion expired in August 2008. However, Petitioner did not
file this Petition for § 2255 relief until June 16,
2014, almost six years late. As such, the filing is untimely.
Court noted that it “initially was inclined to order
Hill to show cause why his § 2255 motion should not be
denied as time-barred without requiring a response from the
Government, ” but declined to do so based on the
Government's position in a prior case (Shaeffer v.
United States, No. 1:07-CR-146), and the
Government's reassessment of its timeliness defenses in
that case, and ordered the Government to respond [Doc. 95].
Government did respond [Doc. 96] and specifically asserted
its timeliness defense in this case.
TIMELINESS OF PETITIONER'S § 2255 PETITION
Government correctly notes that a one-year period of
limitation applies to § 2255 motions, and that period
typically 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” (citation
omitted)). Here, Petitioner's conviction became final in
either May or August 2007, at the expiration of time for
seeking direct appellate review. As such, he had until May or
August 2008 to file a § 2255 motion, but he did not file
the Petition until nearly six years later. As such, his
§ 2255 motion and all the claims it contains are
untimely and may be dismissed on that basis.
to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), “[a] motion filed pursuant to 28
U.S.C. § 2255 is subject to a one-year statute of
limitations, with the limitations period beginning to run
‘from the latest of' four possible dates.”
Jefferson v. United States, 730 F.3d 537, 544 (6th
Cir. 2013) (quoting Benitez v. United States, 521
F.3d 625, 629 (6th Cir. 2008)). The four dates are:
“(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 claim, let alone demonstrate, that
subsections (f)(2), (3), or (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, nor any newly recognize right by
the Supreme Court.
purposes of the first category-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 up
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). In
the alternative, when a defendant pursues a direct appeal but
does not petition the United States Supreme Court for
certiorari, his judgment becomes final when the time expires
for filing such petition-90 days after entry of the
intermediate appellate court's judgment. Id.;
see also Supreme Court Rule 13(3) (“The time
to file a petition for a writ of certiorari runs from the
date of entry of the judgment or order sought to be reviewed,
and not from the issuance date of the mandate.”).
light of the foregoing, Petitioner's judgment of
conviction became final on either May 7, 2007, or August 23,
2007. The statute of limitations began to run on that date,
ultimately expiring one year later on either May 7, 2008, or
August 23, 2008. Failure to file the current petition until
June 6, 2014, [Doc. 93]-almost six years after expiration of
the one-year limitations period-necessarily leads the Court
to conclude Petitioner's petition is untimely under
§ 2255(f), and thus, time-barred and pretermits the need
to rule on the issues.
such, the Court will not address the merits of
Petitioner's § 2255 claims (nor the Government's
very persuasive arguments that those claims lack
merit) because all of the instant claims are
time-barred, and the Petitioner ...