United States District Court, E.D. Tennessee
A. VARLAN UNITED STATES DISTRICT JUDGE
a pro se prisoner's amended motion to vacate, set aside,
or correct a sentence under 28 U.S.C. § 2255 [No.
3:17-cv-29-TAV-HBG, Doc. 5-1]. Respondent responded,
asserting that the motion is time-barred, among other things
[Id., Doc. 11]. For the following reasons, the
§ 2255 motion [Id., Doc. 1] will be
DENIED as time-barred, and this action will
October 30, 2013, Petitioner was found guilty by jury trial
of 26 counts of a 27-count Superseding Indictment [No.
3:10-cr-160-TAV-HBG-2, Doc.185]. On May 9, 2014, the Court
sentenced Petitioner to 830 months' imprisonment followed
by three years of supervised release [Id., Doc.
248]. Petitioner appeal this conviction; however, the Sixth
Circuit rejected his claims and affirmed his conviction and
sentence. See generally United States v. Kincaid,
631 Fed.Appx. 276 (6th Cir. 2015). On January 30, 2017,
Petitioner filed a § 2255 motion, arguing that he is
entitled to a sentence reduction based on ineffective
assistance of counsel [No. 3:17-cv-29-TAV-HBG, Doc. 1].
Petitioner later moved to amend his motion, which this Court
granted [No. 3:17-cv-29-TAV-HBG, Doc. 9]. The Court now
considers Petitioner's amended § 2255 motion [No.
3:17-cv-29-TAV-HBG, Doc. 5-1].
government argues that Petitioner's § 2255 motion is
time-barred [No. 3:17-cv-29-TAV-HBG, Doc. 11]. 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)). If affirmed on appeal, a
conviction becomes final when the 90-day period for seeking a
writ of certiorari expires. Clay v. United States,
537 U.S. 522, 525 (2003); accord U.S. Sup. Ct. Rule
conviction and sentence were affirmed by the Sixth Circuit on
October 26, 2015, and he did not seek a writ of certiorari
from the Supreme Court. Therefore, Petitioner's
conviction became final on January 25, 2016. Pursuant to the
one-year statute of limitations period, Petitioner had one
year, until January 25, 2017, in which to file a timely
§ 2255 motion. See 28 U.S.C. § 2255(f)(1).
Petitioner, however, executed his § 2255 motion on
January 26, 2017, and the motion was not filed with the Court
until January 30, 2017 [No. 3:17-cv-29-TAV-HBG, Doc. 1].
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.”).
amended § 2255 motion, Petitioner asserts that his
counsel was ineffective in a variety of ways. Petitioner
argues that he is entitled to equitable tolling because he
was in transit for five months and on “lock-down”
for “extended periods of time” [No.
3:17-cv-29-TAV-HBG, Doc. 5-1]. However, the Sixth Circuit has
previously held that time spent in transit is not a
circumstance extraordinary enough to justify equitable
tolling where a Petitioner could have diligently pursued his
rights and timely filed a § 2255 motion during the
remaining year-period available to him. See Brown v.
United States, 20 Fed. App'x 373, 375 (6th Cir.
2001). And Petitioner does not provide any explanation for
his failure to timely file his motion in the periods that he
was not in transit or on lock-down. Thus, Petitioner has not
demonstrated or established that he has pursued his rights
diligently, or that any extraordinary circumstances prevented
him from filing a timely § 2255 motion. The Court
therefore has not been provided with “compelling
equitable considerations” to justify extending the
period of limitations by “even a single day.”
Jurado, 337 F.3d at 643. Because his § 2255
motion is untimely and he is ineligible for equitable
tolling, Petitioner's 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. 3:17-cv-29-TAV-HBG, Doc.
5-1] 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, 529 ...