United States District Court, E.D. Tennessee, Greeneville
JORDAN, UNITED STATES DISTRICT JUDGE
his guilty plea, Randy Brockwell (“Petitioner”)
was convicted of one count of conspiracy to distribute and
possession with intent to distribute fifty grams or more of
cocaine base in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A) [Docs. 813, 937,
1141]. On November 9, 2010, an order of judgment
imposing a sentence of 120 months' imprisonment, followed
by five years of supervised release, was entered [Doc. 813].
On November 13, 2012, in accordance with the provisions of
the Fair Sentencing Act, Pub. L. 11-220, 124 Stat. 2372
(2010), the Court amended the judgment, lowering
Petitioner's original prison term of 120 months to 63
months but leaving the five-year supervised release term
unchanged [Doc. 1141].
February 20, 2015, Petitioner filed a pro se motion “to
reduce probation, ” which the Court construed as a
request to modify November 13, 2012, amended judgment to
impose a shorter term of supervised release [Docs. 1271,
1279]. On March 23, 2015, the Court denied Petitioner's
motion to reduce probation as untimely [Doc. 1279].
returned to the Court some three weeks later with a pro se
motion to vacate, set aside or correct sentence, mounting the
same attack on the length of his term of supervised release
that he had pursued in his motion to reduce probation [Doc.
1287]. However, because the statute of limitations for
Petitioner to file a § 2255 motion challenging his
amended judgment of conviction expired on November 27, 2013,
and because he did not file his § 2255 motion
challenging that judgment until April 6, 2015, the Court
ordered Petitioner to show cause, as to why his motion to
vacate should not be dismissed as untimely. Petitioner filed
a response to the show cause order [Doc. 1296].
Petitioner submitted the response, an agreed order of
revocation of the judgment was entered [Doc. 1359]. In the
agreed order, Petitioner admitted that he had violated
numerous conditions of his supervised release [Id.].
The Court revoked the term of supervised release imposed in
Petitioner's amended judgment and sentenced him to serve
a prison sentence of 12 months and 1 day and three years of
supervised release [Id.]. Petitioner completed his
revocation sentence and was released from confinement on
March 16, 2017. See Federal Bureau of Prisons Inmate
Locator, available at https://www.bop.gov/inmateloc/
(last visited October 25, 2017).
Petitioner's response to the show cause order, he seeks
to avoid the time-bar by asserting that he was unaware that
his supervised release term should have been shorter until he
filed the instant § 2255 motion [Doc. 1296]. Petitioner
attributes his lack of awareness to his reliance on his
lawyer's assurance that “he had everything taken
care of” and that Petitioner's “probation
would have been reduced as well” [Id.]. The
Court views Petitioner's response as possibly asserting
that the statute of limitations governing the filing of his
§ 2255 motion began to run only when he became aware
that his term of supervised release was too lengthy.
statute of limitation for filing a § 2255 motion can be
triggered within one year of “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)(4). However, the circumstances
presented by Petitioner do not demonstrate that he exercised
due diligence in discovering that his supervised release term
in the amended judgment should be shortened.
determine whether Petitioner exercised due diligence in
discerning that a decrease in his supervised release term
would be appropriate, the Court first must ascertain the date
that a reasonable person in Petitioner's circumstances,
exercising due diligence, would have discovered that a
shorter term of supervised release was warranted. See
McDonald v. Warden, Lebanon Corr. Inst., 482 F.
App'x. 22, 29 (6th Cir. 2012) (§ 2254
petition). The date that Petitioner actually
discovered that his term of supervised release was too
lengthy is irrelevant to the inquiry. Schlueter v.
Varner, 384 F.3d 69, 74 (3d. Cir. 2004) (“By its
language, the one-year period of limitation commences under
section 2244(d)(1)(D) when the factual predicate of a claim
could have been discovered through the exercise of due
diligence, not when it actually was discovered.”).
“petitioner has the burden of persuading the court that
he has exercised due diligence in his search for the factual
predicate of his claim.” Stokes v. Leonard, 36
F. App'x 801, 804 (6th Cir. 2002) (citing Lott v.
Coyle, 261 F.3d 594, 605-06 (6th Cir. 2001)). The Court
is not convinced that Petitioner was duly diligent in
obtaining the facts to support that the imposition of a
lesser term of supervised release would have been proper.
Petitioner had only to read his amended judgment issued on
November 13, 2012, to discover the factual predicate for his
claim. To illustrate this point, the amended judgment reads,
in relevant part: “SUPERVISED RELEASE Upon release from
imprisonment, the defendant shall be on supervised release
for a term of 5 years” [Doc. 1141 at 3]. A duly
diligent petitioner undoubtedly would have known at that time
that his sentence of imprisonment would be followed by a
five-year term of supervised release. See Villanueva v.
Anglin, 719 F.3d 769, 774 (7th Cir. 2013)
(“Regardless of when [petitioners] assert they learned
of the [supervised release] requirement, they could have
learned of it on the day they were sentenced had they used
Petitioner has failed to show that a new statute of
limitations was triggered under 28 U.S.C. § 2255(f)(4)
and because he has not shown cause for his failure to comply
with the limitation statute in 28 U.S.C. § 2255(f)(1),
this motion to vacate is time-barred.
only is Petitioner's § 2255 motion untimely but,
more important, it is now moot. Article III of the United
States Constitution limits a federal district court's
subject matter jurisdiction to “Cases” or
“Controversies.” U.S. CONST. Art. III, Sec. 2.
“This case-or-controversy requirement subsists through
all stages of federal judicial proceedings, ”
Spencer v. Kemna, 523 U.S. 1, 7-8 (1998) (quoting
Lewis v. Cont'l Bank Corp., 494 U.S. 472,
477-478 (1990)), and may be raised by the Court sua sponte.
See O'Shea v. Littleton, 414 U.S. 488, 506
(1974) (Douglas, J. dissenting) (“The fact that no
party has raised th[e ‘case or controversy'] issue
in this closely contested case is no barrier, of course, to
our consideration of it.”); see also Valinski v.
Detroit Edison, 197 F. App'x 403, 405 (6th Cir.
2006) (observing that “[t]he existence of subject
matter jurisdiction may be raised at any time, by any party,
or even sua sponte by the court itself”) (quoting
In re Lewis, 398 F.3d 735, 739 (6th Cir. 2005)).
noted, the term of supervised release set in Petitioner's
amended judgment was revoked pursuant to an agreed order of
revocation entered on July 26, 2016 [Doc. 1359]. As noted
also, Petitioner completed service of his one-year and
one-day revocation sentence and was released from confinement
on March 16, 2017. Because Petitioner's revocation
sentence has expired, “some concrete and continuing
injury other than the now-ended incarceration or parole-some
‘collateral consequence' of the conviction-must
exist if the suit is to be maintained.” Demis v.
Sniezek, 558 F.3d 508, 512 (6th Cir. 2009) (quoting
Spencer, 523 U.S. at 7). A petitioner bears the
burden of showing the existence of collateral consequences to
meet the case-or-controversy requirement. .
Sixth Circuit instructs that “it is not enough that a
dispute was alive when [Petitioner's § 2255 motion]
was filed in the district court” and that, to sustain
jurisdiction, he must show that he continues “to have
an actual injury that is capable of being redressed by a
favorable judicial decision.” Demis, 558 at
508 (quoting Brock v. United States Dept. of
Justice, 256 F. App'x 748, 750 (6th Cir. 2007)).
Here, Petitioner has not demonstrated, nor has he even
alleged, that such collateral consequences exist. Because
Petitioner has failed to show any remediable injury with
respect to his expired term of supervised release, his motion
to vacate is moot. See Spencer, 523 U.S. at 14
(“[M]ootness . . .simply deprives us of our power to
act; there is nothing for us to remedy, even if we were
disposed to do so.”).
because the Court has no subject matter jurisdiction over
Petitioner's § 2255 motion challenging the
since-revoked supervised release term imposed in his amended
judgment, his motion to ...