United States District Court, E.D. Tennessee
JORDAN UNITED STATES DISTRICT JUDGE
Jemond Gholston (“Petitioner”) filed this pro se
motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255 [Doc. 1]. The United States responded in
opposition [Doc. 2], and Petitioner replied [Doc. 3].
10, 2014, pursuant to a Rule 11(c)(1)(C) amended plea
agreement,  Petitioner pled guilty to possession with
intent to distribute 28 grams or more of cocaine base
(“crack”), in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B) (Count 1 of the Indictment);
possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C) (Count 2); and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) (Count 3) [Docs. 2, 26, Case No.
2:13-CR-88]. The Court accepted Petitioner's guilty pleas
and referred the matter to the United States Probation Office
for a Presentence Investigation Report (“PSR”)
[Docs. 25, 29 (sealed), Case No. 2:13-CR-88].
on Petitioner's total offense level of 25 and his
criminal history category of II, the probation officer
determined that his Guideline imprisonment range was 63 to 78
months, but that the statutorily-required consecutive 60
months on the firearms count made his effective Guidelines
range 123 to 138 months imprisonment [Doc. 29 at ¶61,
Case No. 2:13-CR-88]. On September 18, 2014, the Court
imposed on Petitioner, in accordance with his Rule
11(c)(1)(C) plea agreement, a net sentence of 120 months'
imprisonment (60 months on Counts 1 and 2, to be served
concurrently, and 60 months on Count 3 to be served
consecutively to Counts 1 and 2) [Doc. 35, Case No.
filed a notice of appeal on November 28, 2016, but the Sixth
Circuit sua sponte dismissed the appeal as untimely [Docs.
40, 43, Case No. 2:13-CR-88]. On August 14, 2017, Petitioner
brought this pro se motion to vacate [Doc. 1]. In its
response, the United States argues that this § 2255
motion is untimely and that, for a variety of reasons, none
of Petitioner's claims warrant relief [Doc. 2]. In the
reply, Petitioner does not address any of the arguments
offered in the government's response, but instead implies
that the Court ought not consider the response because it was
filed a day late, without the government's having claimed
that the lateness of its response was due to excusable
neglect [Doc. 3]. Thus, Petitioner's § 2255 motion
is ripe for review. Because United States' timeliness
argument, if correct, would be dispositive, the Court turns
first to that argument.
STATUTE OF LIMITATION
one-year period for filing a motion to vacate commences on
one of four triggering dates. 28 U.S.C. §
2255(f)(1)-(4). In the typical case, as is this case, the
triggering date in the first subsection of § 2255 is the
date that a conviction becomes final. Id. §
2255(f)(1). A conviction becomes final under subsection one
of the § 2255(f) “at the conclusion of direct
review, ” Johnson v. United States, 246 F.3d
655, 657 (6th Cir. 2001) (citing United States v.
Torres, 211 F.3d 836, 839 (4th Cir. 2000)), which in
many cases occurs “upon the expiration of the period in
which the defendant could have appealed to the court of
appeals, even when no notice of appeal was filed.”
Sanchez-Castellano v. United States, 358 F.3d 424,
427 (6th Cir. 2004).
defendant has fourteen days from the date of judgment in
which to file a notice of appeal. See Fed. R. App.
P. 4(b)(1)(A)(i). Petitioner's judgment was entered
September 18, 2014 [Doc. 35, Case No. 2:13-CR-88]. As
observed earlier, the Sixth Circuit dismissed as untimely
Petitioner's appeal because his notice of appeal was
filed more than two years past the lapse of the 14-day period
set forth in Rule 4(b)(1)(A)(i) of the Federal Rule of
Appellate Procedure [Doc. 43, Case. No. 2:13-CR-88]. “A
conviction becomes final when the time for direct appeal
expires and no appeal has been filed, not when an untimely
appeal is dismissed.” Gillis v. United States,
729 F.3d 641, 644 (6th Cir. 2013) (citing
Sanchez-Castellano, 358 F.3d at 427). Therefore,
Petitioner's belated filing of a notice of appeal and the
subsequent dismissal of his appeal as untimely did not extend
the one-year statute of limitation for filing a motion to
Petitioner did not file a notice of appeal within the
allotted 14-days from judgment, the one-year statute of
limitation in § 2255(f)(1) expired on Friday, October 3,
2014 (Sept. 19, 2014 fourteen days = Oct. 3, 2014).
Petitioner's motion to vacate was received in the Sixth
Circuit on November 28, 2016, and was forwarded to this Court
for filing on that date, see Fed. R. App. P. 4(d)
[Doc. 40-1, Case No. 2:13-CR-88]. The motion to vacate, filed
on November 28, 2016, comes to the Court more than two years
too late under § 2255(f)(1).
the one-year statute of limitation in § 2255(f) is not
jurisdictional and is subject to equitable tolling.
Holland v. Florida, 560 U.S. 631, 645 (2010). A
petitioner is “‘entitled to equitable
tolling' only if he shows ‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Ata v. Scutt, 662
F.3d 736, 741 (6th Cir. 2011) (quoting Holland, 560
U.S. at 649). A petitioner bears the burden of showing that
he is entitled to equitable tolling. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005); accord
Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).
alleged by Petitioner in his pleadings, motions, and other
filings suggest any basis to apply equitable tolling to save
his untimely § 2255 motion. Under these circumstances,
the Court concludes that Petitioner has failed to bear his
burden to demonstrate that equitable tolling is warranted in