United States v. Harris

David J. Novak United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 100) filed by Marcus L. Harris ("Petitioner" or "Harris"), a federal inmate proceeding pro se, who has moved the Court to vacate, set aside, or correct his sentence for Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. § 922(g)(1). Petitioner contends that the following grounds entitle him to relief:

The Court employs the pagination assigned by CM/ECF docketing system to the parties' submissions. The Court corrects the capitalization, punctuation, and spelling in the quotations from the parties' submissions.

Claim One "Violation of . . . right to counsel. [Harris] invoked Miranda and was not provided counsel." ( Id. at 4.)

Claim Two "Ineffective assistance of counsel." (Id. at 5.)

Claim Three "Illegal search & seizure of cellular phone; officer perjury regarding claim of abandonment." (Id. at 7.)

The Government filed a Response asserting that Petitioner's claims are untimely and otherwise lack merit. (ECF No. 103.) Petitioner filed a Reply. (ECF No. 104.)

Miranda v. Arizona, 384 U.S. 436 (1966).

On September 18, 2020, Petitioner also filed a handwritten "Motion to Vacate Judgment Under 28 U.S.C. § 2255" that the Court construed as a Motion to Amend pursuant to Rule 15 of the Federal Rules of Civil Procedure. ("Motion to Amend," (ECF No. 109); see ECF No. 110, at 1 (construing filing as a Motion to Amend).) In his Motion to Amend, Petitioner contends that the Court must vacate his conviction based upon the Supreme Court's decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). (ECF No. 109, at 4.) The Government filed a Response asserting that Petitioner's Rehaif claim was both untimely and procedurally defaulted. (ECF No. 113.) Petitioner filed a Reply. (ECF No. 118.) This matter is now ripe for review.

For the reasons set forth below, the § 2255 Motion is barred by the statute of limitations and will be DISMISSED. The Motion to Amend will also be DENIED as futile.

I. PROCEDURAL HISTORY

On April 6, 2016, following a trial, a jury found Petitioner guilty of Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. § 922(g)(1). (ECF No. 58, at 1; see also ECF No. 9, at 1.) On June 30, 2016, the Court sentenced Petitioner to 120 months of imprisonment. (ECF No. 80, at 1-2.) Petitioner appealed to the United States Court of Appeals for the Fourth Circuit. (ECF No. 82.) On May 5, 2017, the Fourth Circuit affirmed the judgment of this Court. (ECF No. 92.) Petitioner then filed a petition for a writ of certiorari. (ECF No. 96.) On November 6, 2017, the Supreme Court of the United States denied the petition for a writ of certiorari. (ECF No. 97.)

The jury found Petitioner not guilty of two additional charges: Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A). (ECF No. 58, at 1-2; ECF No. 9, at 2-3.)

On December 12, 2018, the Court received an undated letter from Petitioner requesting an extension of time to file his § 2255 Motion, which Petitioner acknowledged was due on or before November 6, 2018. (ECF No. 98, at 1.) By Memorandum Order, dated December 28, 2018, the Court denied Petitioner's request for an extension of time, because Petitioner failed to submit an actual 28 U.S.C. § 2255 motion. (ECF No. 99, at 1-2.) At that time, the Court directed the Clerk to send Petitioner "the form for filing a motion under 28 U.S.C § 2255." (Id.) On April 19, 2019, Petitioner placed his current § 2255 Motion in the prison mail system. (ECF No. 100, at 13.)

The Court deems Petitioner's § 2255 Petition to be filed as of this date. See Houston v. Lack, 487 U.S. 266, 276 (1988).

II. STATUTE OF LIMITATIONS

Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2255 to establish a one-year period of limitation for the filing of a § 2255 Motion. Specifically, 28 U.S.C. § 2255(f) now reads:

(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.

28 U.S.C. § 2255(f).

A. Running of the Statute of Limitations

The Supreme Court denied Petitioner a petition for a writ of certiorari on November 6, 2017. (ECF No. 97.) Consequently, under 28 U.S.C. § 2255(f)(1), Petitioner's conviction became final on that day. See Clay v. United States, 537 U.S. 522, 527 (2003) ("Finality attaches when t[he] [Supreme] Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires."). Thus, Petitioner had until Tuesday, November 6, 2018, to file a motion under § 2255 challenging his conviction and sentence. Because Petitioner did not file his § 2255 Motion until April 19, 2019, the motion is untimely.

Petitioner concedes the untimeliness of his § 2255 Motion; however, he requests that the Court apply the doctrine of equis point. Petitioner then goes on to argue, apparently in the alternative, that he is entitled to a period of equitable tolling based on the Covid-19 pandemic and related lockdowns at prison facilities nationwide. (Id. at 5-6.)

Here again, Petitioner offers only vague and conclusory claims that lack supporting factual details. See San Martin, 633 F.3d at 1268; see also Mayes, 376 F. App'x at 816-17 (holding that an inmate must explain with specificity how the alleged conditions actually hindered his efforts to pursue his claims within the statute of limitations). As was the case with his § 2255 Motion, Petitioner "fails to demonstrate some external impediment, rather than his own lack of diligence, prevented him from filing [his Rehaif claim] in a timely fashion." O'Neill, 2011 WL 3489624, at *6. As such, Petitioner's proposed amended claim is barred by the statute of limitations and granting leave to amend would be futile.

Petitioner does not even bother to allege when the lockdown that he complains of was instituted. According to the New York Times, the first case of Covid-19 in the United States was identified in January of 2020. See https://www.nytimes.com/article/coronavirus-timeline.html (last visited April 20, 2021). The Centers for Disease Control did not recommend limitations on gatherings in the United States until March of 2020. Id. Assuming the lockdown Petitioner complains of did not occur until after that time, that still leaves at least six months, likely more, after Rehaif was decided, but before any lockdown would have been instituted, where Petitioner could have filed his motion to amend, if he had been acting diligently to protect his rights. Petitioner does not address this fact.

Accordingly, Petitioner's Motion to Amend (ECF No. 109) will be DENIED.

IV. CONCLUSION

For the foregoing reasons, Petitioner's § 2255 Motion (ECF No. 100) will be DISMISSED as untimely. Petitioner's Motion to Amend (ECF No. 109) will likewise be DENIED. The action will be DISMISSED. A certificate of appealability will be DENIED.

An appeal may not be taken from the final order in a § 2255 proceeding unless a judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(B). A COA will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Petitioner has not satisfied this standard. --------

An appropriate order shall issue.

Let the Clerk file a copy of this Memorandum Opinion electronically and send a copy to Petitioner and counsel of record.

/s/_________

David J. Novak

United States District Judge Richmond, Virginia
Date: May 6, 2021