United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Edward Adams, 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 § 2255 motion as untimely filed.
court entered Petitioner's criminal judgment in December
2006, sentencing him to, inter alia, 248 months'
incarceration for conspiring to distribute more than 500
grams of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and possessing a firearm in
relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c). Petitioner did not appeal, and he filed
the instant § 2255 motion no earlier than May 2, 2017.
Petitioner believes the sentencing factors of 18 U.S.C.
§ 3553(a) are now satisfied and he should be resentenced
to time served because he has already served 135 months of
his sentence. Petitioner argues that the § 2255 motion
is timely filed within one year of Dean v. United
States. 137 S.Ct. 1170 (2017), and Mathis v. United
States. 136 S.Ct. 2243 (2016).
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 January 2007 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). Petitioner did
not file the § 2255 until more than ten years after his
convictions became final.
argues that his motion should be considered timely filed
because Dean v. United States. 137 S.Ct. 1170
(2017), or Mathis v. United States, 136 S.Ct. 2243
(2016), purportedly triggers the filing period. See 28 U.S.C.
§ 2255(f)(3) (allowing the limitations period to start
on the date on the Supreme Court initially recognized the
specific right if that right retroactively applies to §
2255 proceedings). However, Dean and Mathis
do not trigger the limitations period in § 2255(f)(3)
because neither case applies retroactively to § 2255
proceedings under the criteria discussed in Teague v.
Lane, 489 U.S. 288, 311-16 (1989). Furthermore, the
Court explained in Dean that "nothing in the
law requires" courts to calculate the term of
imprisonment for each individual offense and counseled courts
to adhere to statutory language and well-settled judicial
principles. Dean, 137 S.Ct. at 1176-77. Also, the
Court specifically noted in Mathis that its holding
was not new and that it has "often held" in
"no uncertain terms" that a state crime cannot
qualify as an ACCA predicate if its elements are broader than
those of a listed generic offense. Mathis, 136 S.Ct.
at 2251; see In re Lott, 838 F.3d 522, 523 (5th Cir.
2016) (per curiam) (denying authorization to file a
successive application under 28 U.S.C. § 2255(h)(2) on
the basis that the movant failed to make a prima facie
showing that Mathis set forth a new rule of
constitutional law that has been made retroactive to cases on
collateral review). While Petitioner cites other cases that
apply either Dean or Mathis, Dean or
Mathis were applied direct appeal, not retroactively
on collateral review. See, e.g.. United States
v. Thomas. No843 F.3d 1199, 1200 (9th Cir. 2016);
United States v. White. No. 15-4096, 836 F.3d 437,
2016 U.S. App. LEXIS 16579, at *l-2, 2016 WL 4717943, at *1
(4th Cir. Sept. 9, 2016). Consequently, § 2255(f)(1) is
the appropriate limitations period, and Petitioner filed the
§ 2255 motion more than one year after his convictions
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, 644-45 (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). Although Petitioner blames his counsel for never
filing a direct appeal, he fails to describe due diligence
either to discover or remedy the oversight within a
reasonable amount of time. 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 court dismisses the § 2255 motion
as untimely filed. 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. McDaniel. 529 U.S. 473,
484 (2000), a certificate of appealability is denied.
 As pertinent to Petitioner,
Dean held that a sentencing court may consider the
mandatory minimum sentence required by 18 U.S.C. §
924(c) when calculating an appropriate sentence for the
predicate offense. Dean. supra at 1177.
Mathis held that held that "a state crime
cannot qualify as an [Armed Career Criminal Act] predicate if
its elements are broader than those of a listed generic
offense." Mathis. supra at 2251. However, the