United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge.
Lynn Getz, 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 the court for
preliminary review pursuant to Rule 4 of the Rules Governing
§ 2255 Proceedings. After reviewing the record, the
court dismisses the motion as untimely filed.
court entered Petitioner's criminal judgment on November
7, 2013, sentencing her to, inter alia, 96
months' incarceration after Petitioner pleaded guilty to
two crimes related to the distribution of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 846.
Petitioner did not appeal.
commenced this action no earlier than September 22, 2016. The
court conditionally filed the motion, advised Petitioner that
the motion appeared untimely, and gave her 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
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 November 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 November
2014 to timely file a § 2255 motion, but she 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 she has until
November 1, 2016, to file the § 2255 motion. However,
Amendment 794 does not trigger a limitations period in §
2255(f). Furthermore, an amendment 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). The
court does 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, the court finds 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 dismissed.
foregoing reasons, the motion to vacate, set aside, or
correct sentence is dismissed. Based upon the court's
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 v.