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McQuiston v. United States

United States District Court, W.D. Tennessee, Eastern Division

September 24, 2019

DALE CONRAD MCQUISTON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING MOTION TO AMEND (ECF NO. 8), DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          JAMES D. TODD UNITED STATES DISTRICT JUDGE

         On May 22, 1991, a jury convicted the Movant, Dale Conrad McQuiston, on one count of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d); one count of possessing a firearm during a crime of violence, in violation of 18 U.SC. § 924(c); and three counts of possessing a firearm after conviction of a felony, in violation of 18 U.S.C. § 922(g). At his sentencing hearing on August 23, 1991, the Court determined McQuiston qualified for an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See also U.S.S.G. § 4B1.4. The Court also granted the United States’ motion for an upward departure, finding that McQuiston’s criminal history category of IV under the Sentencing Guidelines did not adequately reflect the seriousness of his criminal background. He was sentenced to a 327-month term of imprisonment for the armed bank robbery, a 60-month consecutive term for the § 924(c) conviction, and concurrent 327-month sentences on each of the three § 922(g) convictions, for a total effective sentence of 387 months. The Court also imposed a five-year period of supervised release. The Sixth Circuit affirmed. United States v. McQuiston, No. 91-6048, 1992 WL 184578 (6th Cir. Aug. 4, 1992); see also United States v. McQuiston, No. 91-6048, 1993 WL 264655 (6th Cir. July 12, 1993) (disposing of issue deferred in the earlier decision).

         McQuiston filed this motion pursuant to 28 U.S.C. § 2255 on May 31, 2016. (ECF No. 1.) The United States has filed a response. (ECF No. 22.) Though the § 2255 motion raises various issues, the primary claim is a challenge to McQuiston’s sentence under the decision in Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), is unconstitutionally vague. Johnson was held to be retroactive and thus applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257 (2016).

         McQuiston later filed a motion to amend his § 2255 motion to also rely on the decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), “as it applies to the 924(c) consecutive sentence.” (ECF No. 8.) The motion to amend is GRANTED.

Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         “A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).

         After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Rule 4(b), Rules Governing § 2255 Proceedings (§ 2255 Rules). “If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.” Id. The United States filed a response to McQuiston’s § 2255 motion on April 15, 2019. (ECF No. 22.)

         Twenty-eight U.S.C. § 2255(f) contains a one-year limitations period:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

         With regard to his Johnson challenge, McQuiston filed his § 2255 motion within one year after the decision, so that claim is deemed timely under § 2255(f)(3).

         The claims designated in McQuiston’s § 2255 motion as claims one and three however, (ECF No. 1 at PageID 4-5), are facially time-barred. The Sixth Circuit’s final order affirming his convictions and sentence was issued on July 12, 1993, and the time for filing a writ of certiorari expired on October 12, 1993. Unless McQuiston can show that the one-year limitations period for these claims is governed by § 2255(f)(2), (3) or (4) or was tolled, the time for filing these non-Johnson claims expired on October 12, 1994.

         Claim One – Speedy Trial Act

         McQuiston first asserts he has recovered his lost or repressed memory after three decades and has recalled facts that “directly affect this case.” (ECF No. 1 at PageID 4.) However, the relevance of the facts McQuiston contends he has remembered is not entirely clear. The Speedy Trial Act claim is set out in his § 2255 motion as follows:

After almost three decades my lost or repressed memory has recovered. This was noted in the record at trial and sentencing. The recovery of certain facts that I previously could not dispute, directly affect this case. I also am being treated for a serious vision ...

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