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Gholston v. United States

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

August 29, 2019



          Leon Jordan United States District Judge.

         Montavius Jemond Gholston (“Petitioner”) filed this pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [Doc. 1].[1] The United States responded in opposition [Doc. 2], and Petitioner replied [Doc. 3].


         On June 10, 2014, pursuant to a Rule 11(c)(1)(C) amended plea agreement, [2] 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].

         Based 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. 2:13-CR-88].

         Petitioner 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].[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.


         The 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).

         A 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 vacate.

         Because 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).


         However, 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).

         Nothing 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 his case.

         IV. ...

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