United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. §
2255, DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING AN
APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO
APPEAL IN FORMA PAUPERIS
D. TODD UNITED STATES DISTRICT JUDGE.
11, 2006, Rodney Bates entered a guilty plea to one count of
possessing crack cocaine with the intent to distribute, in
violation of 21 U.S.C. § 841(a)(1). (No. 06-10017, Crim.
ECF Nos. 17 & 19.) At his sentencing hearing on August
10, 2006, the Court determined, based on his criminal
history, that Bates qualified for an enhanced sentence under
the Career Offender provision of the U.S. Sentencing
Guidelines. U.S.S.G. § 4B1.1. He was sentenced to a
188-month term of imprisonment and a four-year period of
supervised release. (No. 06-10017, Crim. ECF Nos. 23 &
24.) Pursuant to a waiver in the written Plea Agreement,
(id. Crim. ECF No. 19), no direct appeal was filed.
subsequently filed two motions to reduce his sentence
pursuant to 18 U.S.C. § 3582(c)(2). The first motion,
filed in 2013, was based on the retroactive amendments to the
Sentencing Guidelines after passage of the Fair Sentencing
Act of 2010. (Id. Crim. ECF No. 27.) Bates's
second motion for reduction of sentence was filed in 2015
after the Sentencing Commission promulgated additional
retroactive amendments . (Id. Crim. ECF No. 31.)
Both motions were denied. (Id. Crim. ECF Nos. 30
filed this § 2255 proceeding pro se on June 29,
2016, raising claims of ineffective assistance of counsel and
contending that his sentence is unlawful under the decision
in Johnson v. United States, 135 S.Ct. 2551 (2015).
(ECF No. 1.) In Johnson, the Supreme Court held the
residual clause in the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e), is unconstitutionally vague.
Court found Bates's Johnson claim was timely but
denied relief on that issue because he was sentenced under
the Career Offender guideline instead of the ACCA; thus the
claim was foreclosed by the decision in Beckles v. United
States, 137 S.Ct. 886 (2017). (ECF No. 5 at PageID
21-22.) The Court also noted that Bates's ineffective
assistance claims were facially time barred, but he asserted
they were timely under § 2255(f)(4); the United States
therefore was ordered to respond to those claims.
(Id. at PageID 20-21.)
U.S.C. § 2255(f) contains a one-year limitations period:
(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
(1) the date on which the judgment of conviction becomes
(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
(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.
states in the § 2255 motion that his claims are timely
under paragraphs (f)(3) and (f)(4). (ECF No. 1 at PageID 12.)
Though the Johnson claim was timely under paragraph
(f)(3), that provision does not apply to the ineffective
assistance claims. The Court therefore presumes the reference
to paragraph (f)(4) is meant to encompass the ineffective
assistance claims. The United States argues in response that
§ 2255(f)(4) does not apply and that the doctrine of
equitable tolling also should not be applied in this case.
raises three specific claims of ineffective assistance. In
the first claim, he contends trial counsel was ineffective in
failing to file a direct appeal even though he was requested
to do so. (ECF No. 1 at PageID 4.) The second claim asserts
that counsel was ineffective for failing to challenge, at
sentencing, the use of two of Bates's prior convictions.
(Id. at PageID 5.) Under § 2255(f)(1), these
claims should have been raised within one year after
Bates's conviction became final. When no direct appeal is
filed, a judgment of conviction becomes final when the time
for filing a direct appeal expires. See United States v.
Sferrazza, 645 Fed.Appx. 399, 406 (6th Cir. 2016)
(citing Sanchez-Castellano v. United States, 358
F.3d 424, 426-28 (6th Cir. 2004)). Judgment in Bates's
criminal case was entered on August 14, 2006, and a timely
notice of appeal was due within ten days, on or before August
28, 2006. See Fed. R. App. P. 4(b) (2006); see
also Fed. R. App. P. 26(a)(2) (2006). Bates did not
file a timely direct appeal, and his conviction became final
on that date. He therefore had until August 28, 2007, to
file a timely § 2255 motion. The present motion was not
filed until almost nine years later.
order for these ineffective assistance claims to come within
the one-year limitations period, Bates must point to facts
supporting the claims that he could not discover, even with
the exercise of due diligence, until on or after June 29,
2015. He has not attempted to make such a showing. Therefore,
Bates has not demonstrated that § 2255(f)(4) applies to
his claims that ...