United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
William Miller, a federal inmate proceeding pro se, filed his
second 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 March 7,
2012, sentencing him to, inter alia, 120 months'
incarceration after Petitioner pleaded guilty to one count of
knowingly transporting child pornography via interstate
commerce, in violation of 18 U.S.C. §§ 2252A and
2256. Part of this sentence was based on a five-level
enhancement to the United States Sentencing Guidelines
("U.S.S.G.") Base Offense Level for using a
"peer-to-peer" file-sharing network under U.S.S.G.
§ 2G2.2(b)(3)(B). Petitioner did not appeal.
voluntarily withdrew his first § 2255 motion less than
one month after filing it, and he filed his second §
2255 motion no earlier than October 16, 2017. The court
conditionally filed the second motion, advised Petitioner
that it 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, 2016, which was
the effective date for Amendment 801 of the United States
argues that Amendment 801 revised United States Sentencing
Guideline § 2G2.2(b)(3)(B) to specify that a
mens rea of "knowingly" must be proven
prior to applying an enhancement for using a peer-to-peer
network. As explained in the commentary to the Amendment,
which quoted commentary to the amended section, Amendment 801
was enacted to clarify that the five-point increase was only
proper in part when "the defendant agreed to an exchange
with another person under which the defendant knowingly
distributed to that other person for the specific purpose of
obtaining something of valuable consideration from that other
person, such as other child pornographic material...."
Amendment 801, Reason for the Amendment at 145, Supplement to
App'x C to the U.S.S.G. manual, Nov. 1, 2016. Petitioner
cites United States v. McManus, 734 F.3d 315, 322
(4th Cir. 2013), in support of requiring a
"knowing" mens rea to guideline
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. lv52, 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 2012 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
2013 to timely file a § 2255 motion, but he did not file
the instant motion until October 2017. 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 801 was effective starting November 1,
2016. Consequently, Petitioner believes he had until November
1, 2017, to file the § 2255 motion. However, Amendment
801 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)). Moreover,
United States v. McManus, 734 F.3d 315, 322 (4th
Cir. 2013), does not trigger § 2255(f)(3). Consequently,
§ 2255(f)(1) is the appropriate limitations period, and
Petitioner filed the instant 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." 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.