United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PETITIONER'S MOTION UNDER RULE 60(b)(1) (Doc. 37)
AVERN COHN, District Judge.
This is a case under 28 U.S.C. § 2255. Petitioner Tyrone Richard Watkins (Petitioner) plead guilty under a Rule 11 agreement to five counts of bank robbery and one count of using a firearm during and in relation to a crime of violence. Petitioner filed a direct appeal, which was dismissed because of the waiver in his plea agreement. Petitioner then filed a motion under § 2255, claiming ineffective assistance of counsel, breach of the plea agreement, and that his sentence was procedurally unreasonable. On February 20, 2014, the Court dismissed the petition as time barred. (Doc. 36).
After the petition was dismissed, Petitioner filed a motion under Fed.R.Civ.P. 60(b)(1), contending that the Court erred in dismissing the petition. (Doc. 37). The government filed a response. (Doc. 39). For the reasons that follow, the motion is GRANTED.
The background is described in order denying Petitioner's § 2255 motion as follows:
Petitioner robbed five separate banks between July 10 and August 20, 2010. During each robbery, Petitioner displayed a firearm and threatened bank employees. Petitioner was charged in a 12 count indictment, which included five counts of bank robbery, five counts of using and carrying a firearm during a crime of violence, one count of felon in possession of a firearm, and one count of possession of a controlled substance.
On May 2, 2011, Petitioner plead guilty to five counts of bank robbery and one firearm count. As part of the plea agreement, the parties calculated Petitioner's guidelines range at 108 to 135 months plus 84 months consecutive, for a range of 192-219 months. However, because Petitioner was facing the possibility of 107 years to life if he had been found guilty as charged, the parties stipulated to a 240 month sentence. The probation department later determined, due to an adjustment in Petitioner's criminal history category, that Petitioner's guidelines range was 97 to 121 months, plus 84 months consecutive, for a range of 181-205 months.
On October 31, 2011, the Court sentenced Petitioner to 240 months imprisonment. Petitioner appealed, contending he did not adequately understand the appellate-waiver provision in the plea agreement. The government moved to dismiss based on the appellate-waiver provision. The Court of Appeals for the Sixth Circuit dismissed the appeal. The order dismissing the appeal was filed on September 12, 2012. Petitioner did not seek certiorari. On December 20, 2013, Petitioner handed his petition to prison authorities for mailing, which was received and filed on December 23, 2013.
(Doc. 36 at p. 2).
The Court dismissed the motion as untimely, explaining:
Here, the deadline for filing a petition for writ of certiorari with the Supreme Court expired, at the latest, on December 12, 2012, ninety days after the Sixth Circuit issued its decision on September 12, 2012. Thus, Petitioner was required to file his § 2255 motion no later than December 12, 2013. A motion filed by a prisoner is deemed filed when given to the prison authorities for mailing. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997), (citing Houston v. Lack, 487 U.S. 266, 270-71 (1988)). The back side of the envelope in which Petitioner mailed his § 2255 motion reflects he gave prison authorities his motion for mailing on December 20, 2013, beyond the statute of limitations period.
(Id. at p. 4) (footnote ...