United States District Court, W.D. Virginia, Big Stone Gap Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States; Emmanuel Lee Vestal, Pro Se
P. Jones United States District Judge
defendant, proceeding pro se, filed a Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.
This matter is before me upon the United States’ Motion
to Dismiss. Vestal has responded to that motion, making the
matter ripe for disposition. After reviewing the record, I
will grant the United States’ Motion to Dismiss.
was sentenced by this court by judgment entered April 16,
2015, to 57 months’ incarceration after Vestal pleaded
guilty to conspiring to commit misbranding, in violation of
18 U.S.C. § 371, and misbranding, in violation of 21
U.S.C. § 333(a)(2).
commenced this collateral attack no earlier than May 18,
2016. The court conditionally filed his
“Motion, Plain Error Review, ” and advised him
that it intended to construe that motion as a § 2255
motion in accordance with Castro v. United States,
540 U.S. 375, 377 (2003). In its Motion to Dismiss, the
United States argues that the § 2255 motion is untimely
filed, and Vestal argues in response that his § 2255
motion is timely filed within one year of Molina-Martinez
v. United States, 136 S.Ct. 1338 (2016).
inmates in custody may attack the validity of their federal
sentences by filing motions pursuant to 28 U.S.C. § 2255
within the one-year limitations period. This period begins to
run from the latest of: (1) the date on which the judgment of
conviction becomes final; (2) the date on which the
impediment to making 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 governmental 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 Supreme Court and
made 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. § 2255(f).
criminal judgment became final on April 30, 2015, when the
time expired to note an appeal to the court of appeals.
See Clay v. United States, 537 U.S. 522, 524-25
(2003) (stating a conviction becomes final once the
availability of direct review is exhausted). Accordingly, for
purposes of § 2255(f)(1), Vestal had until April 30,
2016, to timely file a § 2255 motion, but he did not
commence this collateral attack until May 18, 2016.
argues that his motion is timely filed within one year of
Molina-Martinez v. United States, 136 S.Ct. 1338
(2016), which was issued on April 20, 2016. However,
Molina-Martinez does not recognize a new right, and
Vestal fails to establish that it applies retroactively to
cases on collateral review. Cf. United States v.
Sanders, 247 F.3d 139, 147-48 (4th Cir. 2001) (citing
Teague v. Lane, 489 U.S. 288, 312 (1989)).
Consequently, Vestal fails to establish that the limitations
period runs from the issuance of Molina-Martinez,
and Vestal filed the § 2255 motion more than one year
after his conviction became final.
tolling is available only in “those rare instances
where - due to circumstances external to the party’s
own conduct - it would be unconscionable to enforce the
limitation period against the party and gross injustice would
result.” Harris v. Hutchinson, 209 F.3d 325,
330 (4th Cir. 2000). Thus, a petitioner must have “been
pursuing his rights diligently, and . . . some extraordinary
circumstance stood in his way” to prevent timely
filing. Holland v. Florida, 560 U.S. 631, 649 (2010)
(internal quotation marks and citation omitted). I do not
find that Vestal pursued his rights diligently or that an
extraordinary circumstance prevented him from filing a timely
§ 2255 motion. See, e.g., United States v.
Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (noting pro se
status and ignorance of the law does not justify equitable
tolling); Turner v. Johnson, 177 F.3d 390, 392 (5th
Cir. 1999) (noting that unfamiliarity with the law due to
illiteracy or pro se status does not toll the limitations
period). Accordingly, Vestal is not entitled to equitable
tolling, and the § 2255 motion must be denied as
foregoing reasons, the United States’ Motion to Dismiss
is granted and Vestal’s Motion to Vacate, Set Aside, or
Correct Sentence is denied. ...