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Andrews v. United States

United States District Court, W.D. Michigan, Southern Division

March 22, 2017




         This matter is before the Court on Movant Antonio Demetrius Andrews's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (ECF No. 1.) On July 15, 2016, the Government filed a response in opposition. (ECF No. 12.) On August 29, 2016, Movant filed a “motion to expand the record/motion to conduct discovery, and initiate application of rules governing 28 U.S.C. § 2255 proceedings.” (ECF No. 17.) For the reasons that follow, both motions will be denied.


         On June 23, 2010, a grand jury returned an indictment against Movant, charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (United States v. Andrews, No. 1:10-cr-171, ECF No. 1.) Following a two-day trial, a jury convicted Movant of this offense. (Verdict, id. at ECF No. 33, PageID.104.) During sentencing, Movant's attorney noted several objections, including the Court's consideration of enhanced penalties under the Armed Career Criminal Act, 18 U.S.C. § 924(e). (Sentencing Tr., id. at ECF No. 45, PageID.434-47.) The Court sentenced Movant to 262 months in prison and 5 years of supervised release. (J., id. at ECF No. 37, PageID.134-39.) Movant appealed his conviction and sentence. (Notice of Appeal, id. at ECF No. 40.) On June 21, 2012, the Court of Appeals for the Sixth Circuit affirmed his conviction and sentence (Order, id. at ECF No. 50), and issued its mandate on July 17, 2012 (Mandate, id. at ECF No. 51). Movant filed an unsigned § 2255 petition on February 12, 2016. (ECF No. 1.) Movant also filed a memorandum in support on March 18, 2016. (ECF No. 6.)


         A 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(f)(1). 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 Cir. 2003)).

         As a 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. Id.


         The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) provides a one-year limitation period to file a motion under § 2255, which runs from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255. A judgment becomes final 90 days after an appellate court issues its mandate. Clay v. United States, 537 U.S. 522, 525 (2003). Here, because the Sixth Circuit issued its mandate on July 17, 2012, the judgment became final on October 15, 2012. Thus, Movant had until October 15, 2013, to timely file his § 2255 motion. Movant did not file until February 12, 2016.

         Movant argues that his petition is timely because he discovered new evidence. (ECF Nos. 1, 6.) When a petitioner discovers new evidence, a motion must be 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 Movant does not cite any newly-discovered evidence in his petition. Rather, Movant alleges a new legal theory. Section 2255(f)(4) applies only to the discovery of new facts, not to 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 § 2255(f)(4)”).

         The AEDPA's statute of limitations is subject to equitable tolling. See McClendon v. Sherman, 329 F.3d 490, 492 (6th Cir. 2003); Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir. 2001). A petitioner who seeks equitable tolling generally “bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The doctrine of equitable tolling is, however, used “sparingly, ” typically “only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.” Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003). Although the Court should not be rigid in its application of this doctrine, Jefferson v. United States, 730 F.3d 537, 549 (6th Cir. 2013), a movant's “‘ignorance of the law is not sufficient to warrant equitable tolling.'” Griffin v. Rogers, 399 F.3d 626, 637 (6th Cir. 2005) (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)); see also Solomon v. United States, 467 F.3d 928, 941 (6th Cir. 2006) (“[R]easonableness of an accused's ignorance of the law should have no relevance in the collateral review of criminal convictions.”).

         Movant requests that the Court apply equitable tolling because his appellate counsel failed to inform him of the Sixth Circuit's ruling and he attempted to fully assert his rights by contacting the Sixth Circuit himself. (ECF No. 6, PageID.43.) Movant contends that he wrote a letter to the Sixth Circuit Clerk in 2013, a year after he filed his appeal. In his affidavit, Movant admits that he received a letter from the clerk around August 2013. (ECF No. 6-2, PageID.58.) But Movant does not indicate anything that he did from August 2013 to 2016-when he filed this motion-to show that he diligently pursued his rights.

         Generally, to qualify as an extraordinary circumstance, a petitioner must show more than pro se status or limited access to a law library. Jones v. United States, 689 F.3d 621, 627 (6th Cir. 2012). The Court may consider a combination of factors, which on their own may not be sufficient, to find extraordinary circumstances. One of these contributing factors is whether a petitioner lost control over his legal materials. See Solomon, 467 F.3d at 934-35 (6th Cir. 2006) (holding that the transfer of petitioner without his legal materials and poor prison communication contributed to application of equitable tolling); cf. Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 751-52 (6th Cir. 2011) (distinguishing Solomon because there was no evidence that petitioner was separated from his legal materials).

         Movant has not shown an extraordinary circumstance arising from circumstances beyond his control. Movant argues that he lost a majority of his legal case file while proceeding through the Bureau of Prisons transit. (ECF No. 6, PageID.44.) He indicates that, around April 2014, he “was placed in segregational (sic) confinement without any of [his] personal property ever inventoried including all of the legal documents from [his] case file.” (ECF No. 6-2, PageID.58.) He further explains that he was transferred again in August 2014, which is when he discovered that most of his legal case file was missing or destroyed. (Id. at PageID.59.) Yet the AEDPA's one-year period of limitations had already expired by August 2014. Moreover, Movant has not alleged anything else to show an extraordinary circumstance existed beyond his control. Even if Movant had shown that he lost some of his legal files before the AEDPA's limitation period lapsed, that likely would not be enough, by itself, to constitute an extraordinary circumstance. See Jones, 689 F.3d at 627 (“Although any one of the above factors [including separation from legal materials ...

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