United States District Court, E.D. Tennessee, Greeneville
JORDAN UNITED STATES DISTRICT JUDGE
pro se, federal inmate Ray Dwight Sluss (Petitioner) moves
the Court to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 [Doc. 1]. The United States
has responded in opposition, arguing, inter alia,
that the § 2255 motion is untimely [Doc. 2]. Following
those filings, Petitioner tendered a motion for status, then
moved for leave to file a late reply to the Government's
response and, at the same time, submitted his proposed reply
[Docs. 3, 4, 4-1]. The Court will GRANT Petitioner's
motions for status and to late-file his reply [Docs. 3-4] and
will consider the reply in deciding this § 2255 motion.
For the following reasons, the Court will DENY
Petitioner's motion to vacate as outside §
2255(f)'s one-year statute of limitation.
four-count indictment charged Petitioner with the following
offenses: receipt of child pornography, in violation of 18
U.S.C. §§ 2252A(a)(1) and (a)(2) (Count one);
possession of child pornography, a violation of 18 U.S.C.
§§ 2252A(a)(5)(b) (Count two); and receipt of child
pornography cartoons, in violation of 18 U.S.C. §
1466A(a)(1) (Counts three and four) [Doc. 3, Case No.
2:13-CR-90]. On February 4, 2014, pursuant to a negotiated
plea agreement, Petitioner pled guilty to Count one, the
knowing receipt of child pornography [Docs. 36 and 38
(criminal minutes), Case No. 2:13-CR-90].
change of plea hearing, while Petitioner was under oath, the
Court verified that he understood that, pursuant to the terms
of the plea agreement, he was waiving his right to file an
appeal. The Court nonetheless advised Petitioner, in
accordance with the requirements of Rule 32(j)(1)(B) of the
Federal Rules of Criminal Procedure, that he may have the
right to appeal the sentence imposed. The Court informed
Petitioner that he had fourteen days from the judgment to
file a notice of appeal and that, if he requested and so
desired, the Clerk of Court could prepare and file the notice
of appeal for him. The government moved to dismiss the
remaining counts at sentencing, and the Court referred the
matter to the United States Probation Office for a
presentence investigation report (PSR) [Doc. 38, Case No.
probation officer disclosed the PSR on May 1, 2014; later
sustained Petitioner's objection to paragraph 37 in the
PSR; and filed a revised PSR on September 9, 2014 [Docs. 39
(sealed), 40, 64 (sealed), Case No. 2:13-CR-90]. The
probation officer determined, based on Petitioner's total
offense level of 32 and his criminal history category of III,
that his Guideline imprisonment range was 151 to 188 months
[Doc. 64 at ¶¶ 45, 53, Case No. 2:13-CR-90].
However, because the statutorily authorized minimum 15-year
sentence was greater than the minimum Guideline
range, Petitioner's effective Guideline range became 180
to 188 months' imprisonment under USSG § 5G1.1(c)(2)
[Id. at ¶¶ 74-75, Case No. 2:13-CR-90].
The probation officer also listed the number of images (4,
344) and of videos (50) of child pornography, as well as the
length of almost half of the videos (22 videos were more than
5 minutes long) as factors that might warrant an upward
departure from the Guideline range [Id. at ¶
89, Case No. 2:13-CR-90].
government then moved for an upward departure, and by
judgment entered September 11, 2014, the Court granted the
government's motion and imposed a 210-month term of
incarceration, to be served consecutively to any sentences
issued in Petitioner's two pending cases in the criminal
Court for Washington County, Tennessee [Docs. 61, 65-66, Case
No. 2:13-CR-90]. The sentence of imprisonment was to be
followed by a life term of supervised release [Doc. 66, Case
No. 2:13-CR-90]. Consistent with the waiver provision in
Petitioner's plea agreement [Doc. 36 at ¶ 11(a),
Case No. 2:13-CR-90 (waiving his right to file a direct
appeal)], he did not pursue a direct appeal.
the prison mailbox rule, Petitioner constructively filed this
pro se motion to vacate on November 8, 2016, the date he
placed it in the prison mail system [Doc. 1 at 11
(Petitioner's certification, under penalty of perjury,
that on that date he placed his § 2255 motion in the
prison mailing system)]. See Fed. R. App. P.
4(c)(1)); see also Houston v. Lack, 487 U.S. 266,
271-76 (1988); Towns v. United States, 190 F.3d 468,
469 (6th Cir. 1999). As noted, the United States argues in
its response that Petitioner's § 2255 motion is
untimely and, alternatively, that the claims raised therein
are waived, procedurally defaulted, baseless, and do not
warrant relief [Doc. 2].
Petitioner's reply, he addresses each of the
government's theories as to why he is not entitled to
relief [Doc. 4-1]. However, because the Court finds that the
United States' timeliness argument is dispositive of this
§ 2255 motion, the Court will discuss only
Petitioner's arguments offered to counter the assertion
that his motion to vacate is untimely.
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 one, 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 § 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)).
observed, Petitioner did not file a direct appeal from his
September 11, 2014, judgment of conviction. Therefore,
Petitioner's conviction became final on Friday, September
26, 2014, upon the lapse of the 14-day period in which he
could have filed a notice of appeal (September 12,
14 days = Friday, September 26, 2014). See Fed. R.
App. P. 4(b)(1)(A); see also Gillis v. United
States, 729 F.3d 641, 644 (6th Cir. 2013) (observing
that “[a] conviction becomes final when the time for
direct appeal expires and no appeal has been filed”
(citing Sanchez-Castellano v. United States, 358
F.3d 424, 427 (6th Cir. 2004)).
Petitioner did not file a notice of appeal within the
allotted 14 days from judgment, § 2255(f)(1)'s
one-year statute of limitation began running on September 27,
2014, and expired on September 28, 2015 (September 27, 2014
365 days = September 27, 2015. Because the 365th day fell on
Sunday, September 27, 2015, Petitioner had an extra day,
until Monday, September 28, 2015, to file a timely §
motion to vacate was filed on November 8, 2016, and it
therefore comes to the Court more thirteen ...