United States District Court, W.D. Michigan, Southern Division
TIRRELL L. CLEMMONS, Movant,
UNITED STATES OF AMERICA, Respondent.
J. QUIST, UNITED STATES DISTRICT JUDGE
to the Court’s August 7, 2019, Order (ECF No. 3),
Movant, Tirrell Clemmons, has filed a response setting forth
his reasons why the Court should not dismiss his § 2255
motion as time-barred. The limitations period applicable in
this case is set forth in 28 U.S.C. § 2255(f)(1): one
year from “the date on which the judgment of conviction
becomes final.” Clemmons’s one-year period
commenced 90 days after February 18, 2003-the date the Sixth
Circuit issued its mandate-or May 19, 2003. See Cradler
v. United States, 891 F.3d 659, 665 (6th Cir. 2018)
(“When, as here, the U.S. Court of Appeals affirmed a
criminal judgment, but the defendant did not file a petition
for a writ of certiorari with the Supreme Court, his judgment
is deemed to be final when the time for filing such a
petition expired (i.e., 90 days after the U.S. Court of
Appeals entered judgment).”). Thus, Clemmons had until
May 19, 2004 to file his § 2255 motion. His instant
§ 2255 motion is more than 15 years too late.
one-year limitations period is subject to equitable tolling.
Moore v. United States, 438 Fed.Appx. 445, 449 (6th
Cir. 2011) (citing Hargrove v. Brigano, 300 F.3d
717, 719 (6th Cir. 2002)). However, “federal courts
grant such relief sparingly.” Id. A movant is
“‘entitled to equitable tolling’ only if he
shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.”
Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011)
(quoting Holland v. Florida, 560 U.S. 631, 649, 130
S.Ct. 2549, 2562 (2010)). A movant bears the burden of
showing that equitable tolling is appropriate. McClendon
v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003).
fails to present any evidence that he has been pursuing his
rights diligently over the last 15 years. As the Court noted
in its August 7 Order, in 2005, Clemmons had the wherewithal
to file a “Motion for Re-Sentencing/Sentencing
Adjustment, ” which this Court construed as a §
2255 Motion, which itself was untimely. Moreover, Clemmons
fails to identify extraordinary circumstance that prevented
him from filing a timely § 2255 motion.
response, Clemmons states that his motion was delayed because
the law and issues are complex and he has a limited
education. Such assertions are insufficient to warrant
equitable tolling. The fact that a movant is untrained in the
law, denied access to a law library, was proceeding without a
lawyer, or may have been unaware of the statute of
limitations for a certain period does not warrant tolling.
See Allen v. Yukins, 366 F.3d 396, 403 (6th Cir.
2006); Brown v. United States, No. 01-1481, 2001 WL
1136000, at *3 (6th Cir. Sept. 21, 2001) (citing United
States v. Baker, 197 F.3d 211, 218–19 (6th Cir.
1999)); Fisher v. Johnson, 174 F.3d 710,
714–15 (5th Cir. 1999). As one district court in the
Sixth Circuit has noted, “[c]ourts in this circuit have
consistently found that extraordinary circumstances,
justifying equitable tolling, do not exist simply because a
petitioner: (1) is untrained or ignorant of the law; (2)
reads and writes poorly; (3) does not have access to or
cannot afford professional legal assistance; or (3) [sic]
received bad legal assistance.” Boylen v.
Hudson, No. 5:07CV1697, 2008 LW 3822291, at *7 (N.D.
Ohio May 15, 2008) (citations omitted). Accordingly, Clemmons
fails to demonstrate that he is entitled to equitable
concluded that Clemmons is not entitled to equitable tolling,
the Court must next determine whether a certificate of
appealability should issue under 28 U.S.C. § 2253(c)(2).
A certificate should issue if a movant has demonstrated a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit
has disapproved issuance of blanket denials of certificates
of appealability. Murphy v. Ohio, 263 F.3d 466, 467
(6th Cir. 2001). Rather, the district court must
“engage in a reasoned assessment of each claim”
to determine whether a certificate is warranted. Id.
Each issue must be considered under the standards set forth
by the Supreme Court in Slack v. McDaniel, 529 U.S.
473, 120 S.Ct. 1595 (2000). Murphy, 263 F.3d at 467.
Slack, 529 U.S. at 484, 120 S.Ct. at 1604, to
warrant a grant of the certificate, “[t]he petitioner
must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional
claims debatable or wrong.” The Court concludes that
reasonable jurists could not find this Court’s
conclusion that Clemmons is not entitled to equitable tolling
debatable or wrong. The Court will thus deny Clemmons a
certificate of appealability.
separate Order will enter.
In its August 7, 2019, Order, the Court
stated that Clemmons filed a petition for writ of certiorari
to the United States Supreme Court. In his response, Clemmons
states that he never filed anything in the Supreme Court.
Regardless, as noted in Cradler, the 90-day period
for filing a petition in the Supreme Court extends the
commencement of the one-year period, regardless of whether
the defendant seeks relief in the Supreme Court.
Clemmons also cites 28 U.S.C. §
2241, 18 U.S.C. § 3582(c)(2), Federal Rule of Civil
Procedure 60(b), Federal Rule of Criminal Procedure 52(b),
and the All Writs Act, 28 U.S.C. § 1651, as bases for
his motion. None of these statutes and rules provides a basis
for Clemmons’s motion. See Terrell v. United
States, 564 F.3d 442, 447 (6th Cir. 2009) (noting that
§ 2241 applies to claims against the prisoner’s
custodian challenging the execution or manner in which the
sentence is served, which must be filed in the district
having jurisdiction over the petitioner’s custodian);
United States v. Diaz, 79 Fed.Appx. 151, 152 (6th
Cir. 2003) (“A party may not seek relief from a
criminal sentence under Fed.R.Civ.P. 60(b), because Rule
60(b) is not applicable to criminal proceedings.”);
McCaskill v. United States, No. 02-80216-02, 2017 WL
3720459, at *2 (E.D. Mich. Aug. 28, 2017) (“Because
§ 2255 provides petitioner with the means to challenge
the constitutionality of his sentence, it is that statute,
and not the All Writs Act that provides the authority for
reviewing petitioner’s allegedly unconstitutional
federal sentence.”). Moreover, Clemmons may not argue
that “§ 2255 relief is unavailable merely because
the limitations period has expired.” United States
v. Clark, No. 98-4213, 2000 WL 876760, at *1 (6th Cir.
June 23, 2000) (citing Charles v. Chandler, 180 F.3d
753, 758 (6th Cir. 1999)).
Clemmons does not argue that he is
entitled to equitable tolling based on “actual
innocence.” See McQuiggen v. Perkins, 569 U.S.
383, 133 S.Ct. 1924 (2013). To establish actual innocence,
“[t]he evidence must demonstrate factual innocence, not
mere legal insufficiency.” Patterson v.
Lafler, 455 Fed.Appx. 606, 609 (6th Cir. 2012) (citing
Bousley v. United States, 523 U.S. 614, 623, 118
S.Ct. 1604, 1611 (1998). Nothing in ...