CAMERON MCGOWAN CURRIE Senior United States District Judge
Opinion and Order
This matter is before the court on Defendant's motion for relief, filed in this court pursuant to 28 U.S.C. § 2255. ECF No. 228. For the reasons below, Defendant's Motion to Vacate pursuant to § 2255 is dismissed.
Defendant originally filed his motion under 28 U.S.C. § 2241; however, the court re-characterized the motion as one properly brought under § 2255.
I. Background
In May of 2009, Defendant was indicted on two counts: one count of conspiracy to possess with intent to distributed 5 kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); and one count of eluding examination and inspection by immigration officers by an alien, in violation of 8 U.S.C. § 1325(a)(2). A superseding indictment was filed on July 22, 2009, adding additional counts.
Defendant entered into an amended written plea agreement on September 1, 2009, agreeing to plead guilty to counts one and two of the superseding indictment: conspiracy to possess with intent to distribute and improper entry by an alien. ECF No. 95. Defendant entered a guilty plea the same day. ECF No. 96. Defendant was sentenced on February 5, 2010, and Judgment entered on February 8, 2010, sentencing Defendant to one hundred and fifty (150) months incarceration, followed by five years of supervised release. ECF No. 129.
On February 18, 2010, Defendant filed a Notice of Appeal with the Fourth Circuit. ECF No. 133. The Fourth Circuit affirmed Defendant's conviction and sentence in an opinion filed January 16, 2011. ECF No. 182. The Mandate and Judgment of the Court of Appeals was filed on February 16, 2011. ECF No. 183.
Defendant filed his motion pursuant to § 2255 on December 6, 2016. ECF No. 228. The Government filed a motion to dismiss and a response in opposition to Defendant's § 2255 motion on March 15, 2017. ECF Nos. 231, 232. A Roseboro order was entered by the court and mailed to Defendant, advising him of the importance of a dispositive motion and the need to file an adequate response. ECF No. 234. Defendant replied on March 27, 2017. ECF No. 336.
II. Timeliness
Title 28, United States Code § 2255(f) imposes a one-year statute of limitation on motions for relief under 28 U.S.C. § 2255. Pursuant to the AEDPA, the limitation period runs 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.
28 U.S.C § 2255(f). Therefore, unless subject to a statutory exception, a defendant must file an application for relief under § 2255 within one year of his or her conviction becoming final.
Defendant's conviction was final when the Judgment was handed down by the Fourth Circuit on February 16, 2011. Defendant's motion for relief was not filed until December 6, 2016. Therefore, Defendant's motion is untimely under the statutory provisions of § 2255.
The Government argues Defendant's conviction was final 90 days after January 25, 2011, the day the Fourth Circuit's opinion was issued. However, the Mandate and Judgment was not issued until February 16, 2011. As Defendant did not file a petition for writ of certiorari, his conviction became final 90 days after February 16, 2011 - May 17, 2011. The one-year statute of limitations for motions under § 2255 would be May 17, 2012. Regardless, Defendant filed his § 2255 motion years after the statute of limitations expired.
The Government asserts Defendant may rely on Alleyne v. United States, 570 ___ U.S. ___, 133 S. Ct. 2151 (2013) to argue that his motion is timely under §2255(f)(3). However, Defendant has not made this argument. Such an argument would fail, because the Alleyne decision was over one year before the filing date of Defendant's motion, and because Alleyne was never made retroactively available to cases on collateral review. See United States v. Stewart, 540 F. App'x 171, 172 n.* (4th Cir. 2013).
III. Equitable Tolling
The Supreme Court has determined that the time limit for filing of habeas corpus petitions "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631 (2010). A movant 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. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Whether a circumstances warrants equitable tolling is made on a case-by-case basis. Holland, 560 U.S. at 650 (quoting Baggett v. Bullitt, 377 U.S. 360, 375 (1964)). A district court may apply equitable tolling only in "those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.2003).
Holland was a case involving whether equitable tolling applied to an untimely petition for relief under 28 U.S.C. § 2254. However, the Supreme Court's holding applies with equal force to motions for relief under § 2255. See, e.g., United States v. Terrell, 405 F. App'x 731 (4th Cir. 2010). --------
In this case, neither party provides any basis for the application of equitable tolling. Defendant does not assert any facts to show that he diligently pursued this matter during the relevant time frame, or any extraordinary circumstance that applied to the relevant time period and kept him from timely filing his § 2255 motion. He merely states "the motion was not untimely," with no further explanation or reason given. Therefore, there is no basis to apply equitable tolling, and Defendant's § 2255 motion is untimely.
IV. Conclusion
Defendant's Motion to Vacate Sentence under § 2255 is untimely and thus cannot be granted. Therefore, the Government's Motion to Dismiss is granted, and Defendant's Motion to Vacate under § 2255 is dismissed with prejudice.
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable.
See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003);
Slack v.
McDaniel, 529 U.S. 473, 484 (2000);
Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, a certificate of appealability is
denied.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge Columbia, South Carolina
April 3, 2017