United States District Court, E.D. Tennessee
SHERRY R. BARR, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
A. VARLAN UNITED STATES DISTRICT JUDGE.
a pro se prisoner's motion to vacate, set aside, or
correct a sentence under 28 U.S.C. § 2255 [No.
3:16-cv-501-TAV, Doc. 1]. Respondent responded, asserting
that the motion is time-barred, among other things
[Id., Doc. 4]. For the following reasons, the §
2255 motion [Id., Doc. 1] will be
DENIED as time-barred, and this action will
7, 2014, pursuant to a written plea agreement [No.
3:14-cr-14-TAV-HBG-15, Doc. 151], Petitioner pleaded guilty
to the lesser included offense in Count One of the
indictment, charging Petitioner with conspiracy to
manufacture at least five grams or more of methamphetamine,
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)
[Id., Doc. 181]. The Court sentenced Petitioner to
84 months' imprisonment followed by four years of
supervised release [Id., Doc. 354]. Petitioner did
not appeal this conviction. The Court later reduced
Petitioner's sentence to 70 months' imprisonment
after granting her motion for a sentence reduction under 18
U.S.C. § 3582(c)(2), in light of the United States
Sentencing Guidelines' (hereinafter “USSG”)
Amendment 782 [Id., Doc. 641]. On August 11, 2016,
Petitioner filed the instant § 2255 motion, arguing that
she is entitled to another sentence reduction in light of the
USSG's Amendment 794 [No. 3:16-cv-501-TAV, Doc. 1].
government argues that Petitioner's § 2255 motion is
time-barred [No. 3:16-cv-501-TAV, Doc. 4]. A prisoner in
federal custody may file a motion under 28 U.S.C. §
2255, “claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255. Section 2255(f) provides that the one-year
statute of limitations, 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).
conviction becomes “final [for purposes of §
2255(f)(1)] at the conclusion of direct review.”
Brown v. United States, 20 Fed.Appx. 373, 374 (6th
Cir. 2001) (quoting Johnson v. United States, 246
F.3d 655, 657 (6th Cir. 2001)). Where no appeal is taken, a
conviction becomes final after the time for filing for such
expires, which is fourteen days after entry of the
Court's judgment. See Fed. R. App. P. 4(b)(1)(A)
(explaining the defendant must file her notice of appeal in
the district court within fourteen days after “the
entry of either the judgment or order being appealed”).
did not appeal the Court's judgment against her, and
therefore her conviction became final when she failed to do
so within fourteen days of the Court's entry of judgment.
Sanchez-Castellano v. United States, 358 F.3d 424,
428 (6th Cir. 2004) (explaining that an unappealed judgment
of conviction becomes final when the fourteen-day period for
filing a direct appeal has elapsed). Judgment was entered on
October 9, 2014 [Doc. 354]. Petitioner's judgment became
final fourteen days later, on October 23, 2014. Accordingly,
the § 2255 limitation period in this case ended on
October 23, 2015. Petitioner filed her § 2255 Motion
almost a year later, on August 11, 2016. Petitioner's
§ 2255 motion is therefore time-barred under 28 U.S.C.
appears to invoke the alternate one-year limitations period
found in 28 U.S.C. § 2255 (f)(3), which begins the
limitations period from “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.” However, petitioner has not identified any new
right initially recognized by the Supreme Court; instead, in
the portion of her § 2255 motion relating to its
timeliness, Petitioner states only that there has been a new
ruling in the 9th Circuit case United States v.
Quintero-Levya, 823 F.3d 519 (9th Cir. 2016).
Accordingly, Petitioner cannot avail herself of the statute
of limitations period found in 28 U.S.C. § 2255(f)(3),
and her motion will not be time-barred unless she is entitled
to equitable tolling.
2255(f)'s statute of limitations is not jurisdictional
and may be tolled under limited, extraordinary circumstances.
Dunlap v. United States, 250 F.3d 101, 1007 (6th
Cir. 2001). A petitioner bears the burden of establishing
that equitable tolling applies to her case, and the doctrine
is used sparingly. See Jurado v. Burt, 337 F.3d 638,
642 (6th Cir. 2003); Allen v. Yukins, 366 F.3d 396,
401 (6th Cir. 2004). In order to demonstrate that she is
entitled to equitable tolling, a petitioner must show
“(1) that [s]he has been pursuing [her] rights
diligently, and (2) that some extraordinary circumstance
stood in [her] way and prevented timely filing.”
Holland v. Florida, 130 S.Ct. 2549, 2562 (2010);
Hail v. Warden, 662 F.3d 745, 750 (6th Cir. 2011);
see also Jurado, 337 F.3d at 643 (holding that
“[a]bsent compelling equitable considerations, a court
should not extend limitations by even a single day.”).
makes no arguments to demonstrate that equitable tolling
applies to her case. Because her § 2255 motion is
untimely and she is ineligible for equitable tolling, her
motion will be dismissed.
Court finds that Petitioner is not entitled to relief
pursuant to 28 U.S.C. § 2255, and her motion to vacate,
set aside or correct sentence [No. 3:16-cv-501-TAV, Doc. 1]
will be DENIED and this action will be
DISMISSED. 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. As the Court has
dismissed this action on procedural grounds without reaching
the merits of the underlying claims, and jurists of reason
would not find it debatable that the Court is correct in
finding that the § 2255 petition is untimely, Slack
v. McDaniel, 5 ...