Case Information
*1 CLERK'S OFFICE 'U .S DIST. COURT AT ROANOKE, VA FILED IN THE UM TED STATES DISTRICT COURT JUN 2 S 2217 FOR THE W ESTERN DISTRICT OF VIRGINIA uLw D , CLEMK R OA N O K E D IV ISION : CLERK U NITED STA TES O F A M ER ICA C rim inal A ction N o. 7:06-cr-00022-1 )
) M EM ORANDUM OPINION )
V.
) DA W D ED W A RD A DA M S, ) By: H on. M ichael F. U rbanski
Petitioner. U nited States D istrict Judge )
David Edward Adnm s, a federal inm ate proceeding pro K , filed a m otion to vacate, set aside, or correct sentence ptlrsuant to 28 U.S.C. j 2255. This matter is before the court for preliminary review ptzrsuant to Rule 4 of the Rules Governing j 2255 Proceedings. After reviewing the record, the court dismisses the j 2255 motion as untimely filed.
The court entered Petitioner's criminaljudgment in December 2006, sentencing him to, inter alia, 248 m onths' incarceration for conspiring to distribute m ore than 500 grnms of methnmphetnmine, in violation of 21 U.S.C. jj 841(a)(1) and 846, and possessing a firearm in relation to a dl'ug trafficking cdme, in violation of 18 U.S.C. j 924(c). Petitioner did not appeal, and he Eled the instant j 2255 motion no earlier than May 2, 2017. Petitioner believes the sentencing factors of 18 U.S.C. j 35534a) are now satissed and he should be resentenced to time served because he has already served 135 m onths of M s sentence. Petitioner r gues that the j 2255 motion is timely filed within one year of Dean v. United States, 137 S. Ct. 1170 (2017), and M athis v United States, 136 S. Ct. 2243 (2016).
1 A rtipent to Petitioner , Dean held that a sentencing court may consider the mandatory minimum s pe sentence required by 1 8 U.S.C. j 924/) when calculating an appropriate sentence for the predicate offense. Dean, supra at 1 177. Mathis held that held that ç(a state crime cnnnot qualify as an gArmed Career Crhninal Act! predicate if its elements are broader than those of a listed generic offense.'' M athis, supra at 225 1 . However, the Armed Career Criminal Act does not appear to be pertinent to Petitioner's convictions.
II. Courts and the public can presllm e that a defendant stands fairly and finally convicted after conviction and exhaustion, or waiver, of any right to appeal. United States v. Frady, 456 U.S. 152, 164 (1982). Nonetheless, federal convicts in custody may attack the validity of their federal sentences by filing motions, pursuant to 28 U.S.C. j 2255, within the one-year limitations period. This period begins to nm f'rom the latest of; (1) the date on which thejudgment of conviction becomes snal; (2) the date on wllich the impediment to malcing 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 govemmental 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 Suprem e Court and m ade 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. j 2255(9.
Petitioner's criminaljudgment became fnal in January 2007 when the time expired to appeal to the Court of Appeals for the Fourth Circuit. See Clay v. United States, 537 U.S. 522, 524 (2003) (stating a conviction becomes fnal once the availability of direct review is exhausted). Petitioner did not file the j 2255 until more than ten years after his convictions becnm e snal.
Petitioner argues that llis motion should be considered tim ely filed because Dean v. United States, 137 S. Ct. 1170 (2017), or M athis v. United States, 136 S. Ct. 2243 (2016), purportedly triggers the sling period. See 28 U.S.C. j 2255(9(3) (allowing the limitations period to start on the date on the Supreme Court initially recognized the specific right if that l'igh! retroactively applies to j 2255 proceedings). However, Dean and M athis do not trigger the limitations period in j 2255(9(3) because neither case applies retroactively to j 2255 *3 proceedings under the criteria discussed in Teague v. Lane, 48 9 U.S. 288, 311-16 (1989).
Furtherm ore, the Court explained in Dean that Idnofhing in the law requges'' courts to calculate the term of imprisonment for each individual offense and cotmseled courts to adhere to statutory language and well-settled judicial principles. Dean, 137 S. Ct. at 1176-77. Also, the Court specifically noted in M athis that its holding was not new and that it has Stoften held'' in Glno tmcertain term s'' that a state crime cannot qualify as an ACCA predicate if its elem ents are broader tharl those of a listed generic offense.M athis, 136 S. Pt. at 22519 see In re Lott, 838 F.3d 522, 523 (5th Cir. 2016) (per ctlrinm) (denying authorization to fle a successive application lmder 28 U.S.C. j 2255(1$42) on the basis that the movant failed to make a prima facie showing that M athis set forth a new rule of constitm ional law that has been made retroactive to cases on collateral review). W hile Petitioner cites other cases that apply either Dean or M athis, Dean or M athis were applied direct appeal, not rekoactively on collateral review. Seee e.g., Ulzited States v. Thomas, N0843 F.3d 1199, 1200 (9th Cir. 2016); United States v. W lhite, No. 15-4096, 836 F.3d 437, 2016 U.S. App. LEXIS 16579, at *1-2, 2016 W L 4717943, at # 1 (4th Cir. Sept. 9, 2016). Consequently, j 225549(1) is the appropriate limitations period, and Petitioner fled the j 2255 motion more thm1 one year after his convictions becnme final.
Equitable tolling is available only in tGthose rare instances where - due to circllm stances external to the party's own conduct - it would be tmconscionable to enforce the lim itation period against the party and gross injustice would result.'' Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.
2003) (en banc) (internal quotation marks omitted) (citing Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000:. Thus, a petitioner must have çsbeen pursuing his rights diligently, and . . . ' o som e extraordinary circum stance stood in lus way'' to prevent timely Eling. Holland v. Florida,
560 U.S. 631, 644-45 (2010). The court does not find any extraordinary circumstance in the record that prevented Petitioner from filing a timely j 2255 motion. See. e.:., United States v. *4 Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (noting pro K status and ignorance of the law does not justify equitable tolling); Tllrner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (noting that unfamiliarity with the law due to illiteracy or pro K stat'us does not toll the limitations period). Although Petitioner blam es his counsel for never sling a direct appeal, he fails to describe due diligence either to discover or remedy the oversight witllin a reasonable am otmt of time.
Accordingly, the court finds that Petitioner filed the j 2255 motion beyond the one-year limitations perioà, Petitioner is not entitled to equitable tolling, and the j 2255 motion must be dism issed.
For the foregoing reasons, the court dismisses the j 2255 motion as untimely sled. Based upon the court's finding that Petitioner has not made the requisite substantial showing of a denial of a constitutional right as required by 28 U.S.C. j 2253(c) and Slack v. M cDnniel, 529 U.S. 473, 484 (2000), a cert' ate of appealability is denied.
ENTER : This day of Jtme, 2017.
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United States Distdct ge