United States District Court, W.D. Michigan, Southern Division
HOLMES BELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Movant Anthony Dwanye
Williams's motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1.) On
November 22, 2016, the Government filed a response in
opposition. (ECF No. 6.) For the reasons that follow,
Movant's § 2255 motion is denied.
January 7, 2011, the Grand Rapids Police Department arrested
Movant for various firearms violations. At that time, Movant
was on parole from the Michigan Department of Corrections for
home invasion and unarmed robbery. He was initially charged
in state court with carrying a concealed weapon, possession
of a firearm by a felon, resisting and obstructing a police
officer, and possession of marijuana. (United States v.
Williams, No. 1:11-cr-110, ECF No. 18, PageID.29.) The
court set bond at $250, 000 cash or surety, and placed a
parole hold on Movant. (Id.) After a preliminary
examination, the court bound him over on all charges and he
remained in state custody. Movant was also indicted in
federal court on April 13, 2011, on one count of felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g). At Movant's initial appearance, he waived
detention due to the pending parole hold and remained in
federal custody pending further proceedings. On June 24,
2011, Movant pleaded guilty to felon in possession of a
firearm. There was no plea agreement.
filed a motion to correct sentence, seeking jail credit from
April 28, 2011 through November 9, 2011, and March 28, 2012
through April 23, 2012. (United States v. Williams,
1:11-cr-110, ECF No. 33, PageID.117.) The Court denied his
motion, explaining that “[t]he Court [was] not
authorized to grant credit for time served.”
(United States v. Williams, 1:11-cr-110, ECF No. 34,
PageID.121.) Movant did not appeal the decision. On September
9, 2016, Movant filed this § 2255 motion, claiming that
his counsel was constitutionally ineffective for failing to
request jail credit for time Movant spent in federal custody.
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, that the court was
without jurisdiction to impose such a sentence, that the
sentence was in excess of the maximum authorized by law, or
that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion
“‘a petitioner must demonstrate the existence of
an error of constitutional magnitude which had a substantial
and injurious effect or influence on the guilty plea or the
jury's verdict.'” Humphress v. United
States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
general rule, claims not raised on direct appeal are
procedurally defaulted and may not be raised on collateral
review unless the petitioner shows either (1)
“cause” and “actual prejudice” or (2)
“actual innocence.” Massaro v. United
States, 538 U.S. 500, 504 (2003); Bousley v. United
States, 523 U.S. 614, 621-22 (1998); United States
v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective
assistance of counsel claim, however, is not subject to the
procedural default rule. Massaro, 538 U.S. at 504.
An ineffective assistance of counsel claim may be raised in a
collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a § 2255 motion must be filed
within one year of the “date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(f)(1).
Movant did not appeal his sentence. Therefore, his conviction
became final when the time for filing a direct appeal
expired, which was 14 days after the entry of judgment. Fed.
R. App. P. 4(b)(1); see also Gillis v. United
States, 729 F.3d 641, 644 (6th Cir. 2013). The Court
entered judgment on November 4, 2011, so Movant's
conviction became final 14 days later, on November 18, 2011.
Thus, Movant had one year to file his § 2255 motion, or
until November 19, 2012. Movant did not file this § 2255
motion until September 9, 2016, nearly four years after his
conviction became final.
argues that his motion is timely because it was filed within
one year of the “date on which the facts supporting the
claim presented could have been discovered through the
exercise of due diligence.” 28 U.S.C. §
2255(f)(4). But this applies to the discovery of new facts,
not new legal theories. Taylor v. United States, 518
F. App'x 348, 349-50 (6th Cir. 2013) (holding that
“discovery of a new legal theory does not constitute a
discoverable ‘fact' for purposes of §
argues that he believed he could not file an appeal based on
an appeal waiver in his plea agreement. But Movant did not
have a plea agreement. Movant does not allege the discovery
of a new fact, but rather alleges a new legal theory.
Moreover, Movant filed a motion in 2013 to amend or correct
judgment. Movant has failed to explain why he could not have
included a claim for ineffective assistance of counsel in
that motion or why he could not have brought a § 2255
motion during that time. He does not allege that he
discovered any new facts to support this claim since 2013.
And his claim for ineffective assistance of counsel arises
out of his claim for the motion to amend or correct judgment.
Thus, his motion is time-barred under § 2255(f)(1) and
Movant has not shown that he is entitled to equitable tolling
under Holland v. Florida, 560 U.S. 631, 349 (2010).
A petitioner is entitled to equitable tolling only if he
shows that (1) he has been pursuing his rights diligently,
and (2) an extraordinary circumstance stood in his way to
prevent the timely filing. Id. Movant has not shown
an extraordinary circumstance. Rather, he ...