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Hurst v. United States

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

August 8, 2019

SCOTTIE HURST, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          LEON JORDAN, UNITED STATES DISTRICT JUDGE

         Before the Court are Petitioner Scottie Hurst's counseled motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 and the United States' motion to deny the § 2255 motion and dismiss the action with prejudice [Docs. 1, 5].[1] Also before the Court are Petitioner's motion to defer ruling on his § 2255 motion pending Supreme Court certiorari review in Raybon v. United States, 867 F.3d 625 (6th Cir. 2017), and the United States' response to the § 2255 petition [Docs. 11, 14]. For the reasons that follow, the Court will GRANT the United States' motion to deny and dismiss this action [Doc. 5] and will DENY Petitioner's motion to defer ruling [Doc. 11]

         I. RELEVANT BACKGROUND FACTS AND PROCEDURAL HISTORY

         In 1997, a jury convicted Petitioner of all seven counts of an indictment charging him with Conspiracy to Transport and Possess Stolen Firearms and Ammunition in Interstate Commerce, in violation of 18 U.S.C. § 371 (Count One); Possession of Stolen Firearms and Ammunition, in violation of 18 U.S.C. § 922(j) (Counts Two, Three and Five); Aiding and Abetting in the Transportation of Stolen Firearms in Interstate Commerce, in violation of 18 U.S.C. § 922(i) (Count 4); and Being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g) (Counts Six and Seven) [Docs. 1 (Indictment) and 74 (Verdict), Case No. 3:97-CR-151]. In Petitioner's presentence investigation report (“PSR”) prepared thereafter, the probation officer determined that Petitioner had a prior felony conviction for a crime of violence [PSR at ¶ 10]. The prior felony conviction for a violent crime called for a base level offense of 20 [Id.]. Enhancements and an upward adjustment resulted in a total offense level of 34 [Id. at ¶¶ 12-13, 17, and 19]. Based on Petitioner's total offense level of 34 and his criminal history category of VI, his Guidelines range was calculated to be 262 to 327 months [Id. at ¶¶ 46, 65].

         On December 11, 1998, Petitioner was sentenced, under the then mandatory Guidelines, to a total sentence of 288 months' imprisonment (consisting of 60 months on Count One, 120 months on Count Two, and 108 months each on Counts Three through Seven, with the sentences on Counts One through Three to run consecutive) [Docs. 92 (minutes) and 98, Judgment, Case No. 3:97-CR-151]. Petitioner appealed, and the Sixth Circuit affirmed his conviction and sentence on September 22, 2000. United States v. Hurst, 228 F.3d 751 (6th Cir. 2000). Petitioner did not pursue certiorari review in the Supreme Court. On June 22, 2016, Petitioner filed this counseled motion to vacate [Doc. 1].

         Petitioner's § 2255 motion relies on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which struck down the residual clause of the Armed Career Criminal Act (“ACCA”) as unconstitutionally vague[2] [Doc. 1]. Johnson, 135 S.Ct. at 2563 (holding “that imposing an increased sentence under the residual clause . . . violates the Constitution's guarantee of due process”). Petitioner argues that, pursuant to Johnson's reasoning, he no longer has a qualifying predicate offense classified as a “crime of violence” that can be used to enhance his base level offense under USSG § 2K2.1 [Id. at 1].[3]

         The United States opposes the § 2255 motion, asserting that Johnson's holding was limited to the residual clause of the ACCA and that Petitioner has not shown that Johnson applies retroactively to the Guidelines on collateral review [Doc. 2 at 2]. Citing Beckles v. United States, 137 S.Ct. 886, 895 (2017), Respondent also maintains the Supreme Court has held explicitly that the advisory Sentencing Guidelines are not subject to vagueness challenges under the Due Process Clause and that USSG § 4B1.2's residual clause is not void for vagueness [Doc. 5 at 1]. Respondent further maintains that Beckles conclusively establishes that Petitioner's § 2255 motion is groundless and, therefore, subject to dismissal on the merits for failure to state a claim [Id. at 3]. Respondent submits, as an additional basis for dismissal, that Petitioner's motion is untimely, in light of the ruling in Raybon [Doc. 14, Response].

         II. DISCUSSION

         Petitions under 28 U.S.C. § 2255 asking for collateral relief are subject to a one-year statute of limitation, running from one of four dates. 28 U.S.C. § 2255(f)(1)-(4). Usually, the date on which the judgment of conviction becomes final is the relevant date. 28 U.S.C. § 2255(f)(1). However, a new statute of limitation is triggered for claims based on a right which “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.” 28 U.S.C. § 2255(f)(3).

         Under subsection one, i.e., § 2255(f)(1), the one-year limitations period begins to run on the date a conviction becomes final. The Sixth Circuit decided Petitioner's direct appeal on September 22, 2000. Hurst, 228 F.3d at 75. As noted, Petitioner did not seek certiorari review in the Supreme Court. Hence, ninety days later, upon the lapse of the period for petitioning the Supreme Court for certiorari review, see Sup. Ct. R. 13.1, Petitioner's conviction became final. Clay v. United States, 537 U.S. 522, 525 (2003) (holding that “a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction”). The ninetieth day fell on Friday, December 22, 2000 (September 23, 2000, plus ninety days).[4] Petitioner could have filed a timely § 2255 petition within one year of that date, i.e., by December 22, 2001. Petitioner did not file a § 2255 motion until June 22, 2016, fifteen years and six months too late under § 2255(f)(1).

         Under subsection three, a petition is timely so long as it is filed within one year after the Supreme Court issues an opinion newly recognizing a right and holding that it applies retroactively to cases on collateral review. 28 U.S.C. § 2255(f)(3). As the Court has observed, Beckles ruled that the advisory Guidelines residual clause in USSG 4B1.2(a), unlike the residual clause in the ACCA that Johnson struck down as unconstitutionally vague, is not subject to a void-for-vagueness challenge. Beckles, 137 S.Ct. at 892. Because Petitioner has not identified any new right recognized by the Supreme Court and made retroactive on collateral review that would trigger a new statute of limitations for a residual-clause claim arising under the mandatory Sentencing Guidelines, § 2255(f)(3) affords him no refuge.

         The Court's conclusion that Johnson does not give Petitioner a new limitations period under § 2255(f)(3) is bolstered by Raybon. In Raybon, the Sixth Circuit explained that the law was unsettled as to whether Johnson applies to the residual clause in the mandatory Guidelines, meaning that Johnson did not recognize a new right to have a base level offense determined without reference to the “crime of violence” definition set forth in the residual clause in the mandatory Guidelines. See Raybon, 867 F.3d at 630 (“Because [Johnson's application to mandatory sentencing guidelines] is an open question, it is not a ‘right' that ‘has been newly recognized by the Supreme Court' let alone one that was ‘made retroactively applicable to cases on collateral review.'”), and at 630-31 (observing that § 2255(f)(3) does not save an untimely motion seeking “the recognition of a new right . . . -that individuals have a Constitutional right not to be sentenced as career offenders under the residual clause of the mandatory Sentencing Guidelines”); see also Russo v. United States, 902 F.3d 880, 882 (8th Cir. 2018) (explaining that “the timeliness of [a movant's] claim depends on whether he is asserting the right initially recognized in Johnson or whether he is asserting a different right that would require the creation of a second new rule”), cert. denied, 139 S.Ct. 1297 (2019).

         Finally, § 2255(f)'s statute of limitation is not jurisdictional and is subject to equitable tolling. Shelton v. United States, 800 F.3d 292 (6th Cir. 2015); Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001), abrogated on other grounds by Hall v. Warden, 662 F.3d 745 (6th Cir. 2011). The one-year period in § 2255(f) may be equitably tolled for an otherwise untimely motion to vacate where a petitioner shows “that he has been pursuing his rights diligently . . . [a]nd . . . that some extraordinary circumstance stood in his way and prevented timely filing. Jones v. United States, 689 F.3d 621, 626-27 (6th Cir. 2012) (citation omitted).

         Petitioner has not alleged, and the record does not disclose, that equitable tolling of § 2255(f)'s limitation statute is appropriate in his case. Therefore, equitable tolling does not ...


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