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Sluss v. United States

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

September 4, 2019

RAY DWIGHT SLUSS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          LEON JORDAN UNITED STATES DISTRICT JUDGE

         Acting 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].[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.

         I. RELEVANT BACKGROUND

         A 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].

         At the 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. 2:13-CR-90].

         The 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[2] 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].

         The 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.

         Under 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].

         In 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.

         II. STATUTE OF LIMITATION

         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 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)).

         As 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, 2014[3] 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)).

         Because 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 § 2255 motion.).

         Petitioner's motion to vacate was filed on November 8, 2016, and it therefore comes to the Court more thirteen ...


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