United States District Court, E.D. Tennessee
JOSHUA L. FERGUSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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-623-TAV-HBG, 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
22, 2014, pursuant to a written plea agreement [No.
3:14-cr-14-TAV-HBG-20, Doc. 155], 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. 201]. On November 19, 2014, the Court
sentenced Petitioner to 63 months' imprisonment followed
by four years of supervised release [Id., Doc. 440].
Petitioner did not appeal this conviction. On October 24,
2016, Petitioner filed the instant § 2255 motion,
arguing that he is entitled to a sentence reduction based on
ineffective assistance of counsel [No. 3:16-cv-623-TAV-HBG,
government argues that Petitioner's § 2255 motion is
time-barred [No. 3:16-cv-623-TAV-HBG, 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.” 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.”
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 his 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 him, and
therefore his conviction became final when he 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
November 20, 2014 [3:14-cr-14-TAV-HBG-20, Doc. 441].
Petitioner's judgment became final fourteen days later,
on December 4, 2014. Accordingly, the § 2255 limitation
period in this case ended on December 4, 2015. Petitioner
filed his § 2255 motion almost a year later, on October
24, 2016. Petitioner's § 2255 motion is therefore
time-barred under 28 U.S.C. §2255(f)(1). Moreover,
Petitioner does not identify any new right recognized by the
Supreme Court, so his motion cannot be brought under the
alternate one-year limitations period in § 2255(f)(3).
Accordingly, Petitioner's motion will be time-barred
unless he 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 his 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 he is
entitled to equitable tolling, a petitioner must show
“(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his 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.”).
§ 2255 motion, Petitioner asserts that his counsel was
ineffective because counsel failed to argue that Petitioner
was a minor participant in the conspiracy [Doc.
3:16-cv-623-TAV-HBG, Doc. 1]. He further states that his
§ 2255 motion should be considered, despite its
untimeliness, because he only recently learned of certain
legal facts which “just [became] available” to
him and which he believes support his ineffective assistance
of counsel claim [Doc. 3:16-cv-623-TAV-HBG, Doc. 1]. However,
Petitioner provides no further information to explain why
these facts could only be discovered now, and he does not
allege or establish that he has pursued his rights
diligently, or that any extraordinary circumstances prevented
him from filing a timely § 2255 motion. Thus, because
his § 2255 motion is untimely and he is ineligible for
equitable tolling, his motion will be dismissed.
Court finds that Petitioner is not entitled to relief
pursuant to 28 U.S.C. § 2255, and his motion to vacate,
set aside or correct sentence [No. 3:16-cv-623-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 ...