United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge.
Violente Mundo, 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 April
2006, sentencing him to, inter alia, 180 months'
incarceration for conspiring to distribute 500 grams or more
of methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and 846, and possessing a firearm in . furtherance
of a drug trafficking crime, in violation of 18 U.S.C. §
924(c). Petitioner's appeal to the court of appeals was
unsuccessful, and the Supreme Court of the United States
denied a petition for a writ of certiorari on October 4,
2010. Petitioner filed the instant § 2255 motion no
earlier than May 3, 2017, and he argues that the § 2255
motion is timely filed within one year of Dean v. United
States. 137 S.Ct. 1170 (2017).
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 October 2010 when the
Supreme Court denied a petition for a writ of certiorari. 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 five years after his convictions
argues that his motion should be considered timely filed
because Dean v. United States. 137 S.Ct. 1170 (2017)
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 does not trigger the
limitations period via § 2255(f)(3) because
Dean does not apply 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.
Consequently, § 2255(f)(1) is the appropriate
limitations period, and Petitioner filed the § 2255
motion more than one year after his convictions 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, 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). 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