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Kitzmiller v. United States

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

May 30, 2018

DERRICK DAKOTA KITZMILLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the “Motion To Vacate, Set Aside, Or Correct A Sentence Pursuant to 28 U.S.C. § 2255, ” [Doc. 33], [1] filed by Derrick Kitzmiller (“Kitzmiller” or “petitioner”). Kitzmiller was ordered by the Court to file his motion in accordance with Rule 2(c) of the Rules Governing Section 2255 Proceedings, [Doc. 34], and refiled his motion on February 17, 2017. [Doc. 36]. The United States has responded in opposition, [Doc. 47], to which petitioner replied. [Doc. 48]. On April 9, 2018, the petitioner filed a motion to add grounds to his pending § 2255 motion. [Doc. 55]. The matter is now ripe for disposition.

         On February 12, 2014, Kitzmiller pled guilty to Counts One and Two of the indictment, [Doc. 1], for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). [Doc. 10]. Kitzmiller's sentencing hearing was held on July 7, 2014. On July 21, 2014, a judgment was entered and petitioner was sentenced to 120 months of imprisonment followed by a three (3) year term of supervised release. [Doc. 26]. No notice of appeal was filed by the petitioner. Petitioner filed this motion to vacate on January 30, 2017. [Doc. 33]. 28 U.S.C. § 2255 provides, in relevant part:

A 1-year period of limitations shall apply to a motion under this section. The limitation period shall run from the latest of -
(1) the date on which the judgment of conviction became 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 actions;
(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 exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4). This statute of limitations, however, is not jurisdictional and is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling is warranted where a petitioner shows that he: (1) diligently has pursued his rights and (2) was prevented from timely filing the petition because an extraordinary circumstance stood in his way. Holland, 560 U.S. at 649. A petitioner bears the burden of demonstrating that he is entitled to equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). A court must decide whether to toll the statute on a case-by-case basis. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Federal courts should grant equitable tolling sparingly. Souter v. Jones, 395 F.3d 577, 588 (6th Cir. 2005); Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003); Cook, 295 F.3d at 521. “Absent compelling equitable considerations, a court should not extend limitations by even a single day.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000).

         Petitioner has made no allegations concerning the enumerated paragraphs (2) through (4) above. Accordingly, the one-year period of limitation for the filing of this petitioner's motion to vacate ran from the date on which the judgment of conviction became final. See 28 U.S.C. § 2255 (f)(1). Since the judgment of conviction was entered on July 21, 2014, the judgment became final when the defendant's right to appeal his sentence expired, that is, August 4, 2014. Petitioner's motion to vacate pursuant to § 2255 was not filed until January 30, 2017, nearly two and a half years after the judgment became final. Therefore, petitioner's motion was not filed within the one-year period of limitations required by 28 U.S.C. § 2255.

         Upon finding that petitioner's motion was not timely filed under the statutory period of limitations, the Court will now consider whether equitable tolling is proper in this case. In regards to the timeliness of his motion, petitioner states that his incarceration, solitary confinement, and limited access to legal materials and assistance has been a burden to researching and filing his motion. [Doc. 36 at 13]. In his reply, petitioner makes the following arguments:

I would like the Courts to look at the facts to why the 2255 motion was filed untimely. 1. My judgment became final on August 4, 2014, and I was then remanded back to the custody of Tennessee state officials. 2. I have been in the process of fighting numerous pending charges in Washington County and Sullivan County, Tennessee. 3. Those charges were not completely resolved until December 16, 2015, which has had a major interference in filing a timely 2255 motion. 4. I have been in protective custody at every prison I have been sent to, which has also has [an] impact on my ability to [file] a timely 2255 motion. In protective custody individuals have limited access to the law library, to statutes, and also individuals do not have anyone that can assist you in filing motions. 5. After my state charges were resolved on December 16, 2015, I stated preparing my 2255 motion, while I was at Berlin, NH.

         [Doc. 48 at 1]. Petitioner therefore argues that his limited access to the law library or legal assistance, and his previously pending state charges amount to extraordinary circumstances.

         The government, however, argues that petitioner's “lack of access to a law library does not excuse his failure to raise his ineffective-assistance-of-counsel claims in a timely manner, ” because the issues he raises are not legally complex, and were known to ...


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