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Cole v. United States

United States District Court, E.D. Tennessee, Winchester

February 28, 2018

RONALD H. COLE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE

         Presently before the Court is a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 filed by Ronald H. Cole (“Petitioner”) which challenges his enhanced sentence as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015).[1] The government has filed a response [Doc. 37] acknowledging that Petitioner no longer qualifies as an armed career criminal under the ACCA in light of Johnson. Accordingly, Petitioner's § 2255 motion [Doc. 33] will be GRANTED.

         I. BACKGROUND

         On January 27, 2004, a grand jury sitting in the Eastern District of Tennessee returned a three-count indictment charging Petitioner at Count One with possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); at Count Two with robbery, in violation of 18 U.S.C. § 1951; and at Count Three with using, carrying and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) [Doc. 1]. On April 7, 2005, Petitioner entered a plea of guilty to all three counts [Doc. 25].

         The presentence investigation report (“PSIR”) identified four previous convictions for a violent felony, committed on occasions different from one another, that qualified Petitioner as an armed career criminal under the ACCA: (1) a 1964 conviction for housebreaking in the McMinn County, Tennessee, Criminal Court [PSIR ¶ 51]; (2) a 1968 conviction for bank burglary in the United States District Court for the Eastern District of Tennessee [PSIR ¶ 52]; (3) a 1981 conviction for attempted third degree burglary in the Marshall County, Tennessee, Circuit Court [PSIR ¶ 56]; and (4) a 1990 conviction for armed violence in the Williamson County, Illinois, Circuit Court [PSIR ¶ 57]. As an armed career criminal, Petitioner was subject to a statutory mandatory minimum sentence of 15 years to a maximum of life at Count One of the Indictment[2]and his advisory guideline sentencing range under the United States Sentencing Guidelines (“USSG”) was 272 to 319 months [PSIR ¶¶ 93, 94].

         On September 2, 2005, Petitioner was sentenced to a total term of imprisonment of 319 months, consisting of 235 months on each of Counts One and Two, to be served concurrently, and 84 months on Count Three, to be served consecutively to all other counts [Doc. 30 p. 3]. Upon release from imprisonment, Petitioner was sentenced to a term of supervised release of five years, consisting of five years on each of Counts One and Three and three years on Count Two, all to run concurrently [Doc. 30 p. 4]. Petitioner did not take a direct appeal.

         In the fall of 2016, Petitioner sought leave from the Sixth Circuit Court of Appeals to file a “second or successive” § 2255 motion raising a Johnson claim. On May 4, 2017, the Sixth Circuit denied Petitioner's motion as unnecessary because he had not previously filed a § 2255 motion, and transferred the proposed motion to this Court for resolution [Doc. 32].

         II. ANALYSIS

          A. TIMELINESS

         Section 2255(f) places a one-year period of limitation on all petitions for collateral relief under § 2255 which runs from the latest of: (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).

         Claims based on the Supreme Court's opinion in Johnson satisfy the third sub-category-- the assertion of a newly recognized right made retroactively applicable to cases on collateral review. Welch, 136 S.Ct. at 1268 (holding that Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review); In re Watkins, 810 F.3d at 381-85. The one-year limitation period for filing a motion to vacate based on a right newly recognized by the Supreme Court runs from the date on which the Supreme Court initially recognized the right asserted, not from the date on which the right asserted was made retroactively applicable. Dodd v. United States, 545 U.S. 353, 357 (2005). Accordingly, Johnson triggered a renewed one-year period of limitation beginning on the date of that decision, June 26, 2015, and running until June 26, 2016.

         In this case, the proposed § 2255 motion raising a Johnson claim that Petitioner submitted to the Sixth Circuit Court of Appeals and subsequently was transferred here is dated October 14, 2016, which falls outside the one-year window for requesting collateral relief under Johnson. Ordinarily, then, Petitioner's motion would be time barred under § 2255(f). However, the failure to comply with a statute of limitations is an affirmative defense which can be waived. Scott v. Collins, 286 F.3d 923, 927-28 (6th Cir. 2002). Moreover, a statute of limitations defense is not jurisdictional, and courts are under no obligation to raise the time bar sua sponte. Day v. McDonough, 547 U.S. 198, 205 (2006).[3]

         Here, the government affirmatively has waived its reliance on any statute of limitations defense [Doc. 37 p. 2-3 n. 2] and this Court is not at liberty to disregard that choice. Id. at 210 n. 11. Accordingly, in light of the government's waiver, the Court will consider the merits of Petitioner's Johnson claim despite its untimeliness and without the need to delve into the issue of whether Petitioner otherwise might be entitled to equitable tolling of the limitations period under the circumstances of this case.[4]

         B. ...


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