United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser Senior United States District Judge
Alando Thomas, a federal inmate 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 for
preliminary review pursuant to Rule 4 of the Rules Governing
§ 2255 Proceedings. After reviewing the record, I
dismiss the motion as untimely filed.
entered Petitioner's criminal judgment on March 1, 2013,
sentencing him to, inter alia, 300 months'
incarceration after Petitioner pleaded guilty to conspiring
to distribute marijuana and possessing a firearm in
furtherance of a drug trafficking crime that caused the death
of a person, in violation of 21 U.S.C. § 846 and 18
U.S.C. § 924(c) and (j), respectively. Petitioner did
not appeal. Petitioner filed the instant § 2255 motion
no earlier than in September 2016. The court conditionally
filed the motion, advised him that the motion appeared
untimely, and gave him the opportunity to explain why the
court should consider the motion timely filed. Petitioner
argues that the § 2255 motion is timely filed within one
year of November 1, 2015, which was the effective date for
Amendment 794 of the United States Sentencing Guidelines.
and the public can presume that a defendant stands fairly and
finally convicted after conviction and exhaustion, or waiver,
of any right to appeal. United States v. Frady, 456
U.S. 152, 164 (1982). Nonetheless, federal convicts 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 in March 2013 when the time
expired to appeal to the Court of Appeals for the Fourth
Circuit. See Clay v. United States, 537 U.S. 522,
524 (2003) (stating a conviction becomes final once the
availability of direct review is exhausted). Accordingly, for
purposes of § 2255(f)(1), Petitioner had until March
2014 to timely file a § 2255 motion, but he did not file
the instant motion until September 2016. See Rule 3, R. Gov.
§ 2255 Proceedings (discussing prison-mailbox rule for
§ 2255 motions).
argues that the motion should be considered timely filed
because Amendment 794 was effective starting November 1,
2015. Consequently, Petitioner believes he has until November
1, 2016, to file the § 2255 motion. However, Amendment
794 does not trigger a limitations period in § 2255(f).
Furthermore, an amended to a sentencing guideline is not a
"fact" that triggers § 2255(f)(4). See
Whiteside v. United States, 775 F.3d 180, 183-84 (4th
Cir. 2014) (recognizing changes in law do not constitute a
"fact" under § 2255(f)(4)). Consequently,
§ 2255(f)(1) is the appropriate limitations period, and
Petitioner filed the instant motion more than one year after
her 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." Rouse v. Lee, 339 F.3d 238, 246 (4th
Cir. 2003) (en banc) (internal quotation marks omitted)
(citing 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). I do
not find any extraordinary circumstance in the record that
prevented Petitioner 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, I find
that Petitioner filed the § 2255 motion beyond the
one-year limitations period, Petitioner is not entitled to
equitable tolling, and the § 2255 motion must be
foregoing reasons, the motion to vacate, set aside, or
correct sentence is dismissed. Based upon my finding that
Petitioner has not made the requisite substantial showing of
a denial of a constitutional right as required by 28 U.S.C.
§ 2253(c) and Slack ...