United States District Court, E.D. Virginia, Alexandria Division
TERRY L. ADAMS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
O'Grady United Stales District Judge
matter comes before the Court on Petitioner's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody. Dkt. 39. Petitioner
has also filed motions to supplement his § 2255 Motion
with the proposed supplements included. Dkt. Nos. 53 and 56.
The motions to supplement (Dkt. Nos. 53 and 56) are
GRANTED and the supplements considered
properly filed. For the reasons below and for good cause
shown, Petitioner's Motion Under 28 U.S.C. § 2255
(Dkt. 39) is DENIED.
February 14, 2011, Petitioner pleaded guilty to conspiracy to
distribute 280 grams of crack cocaine in the Eastern District
of Virginia. On April 29, 2011, this Court sentenced
petitioner to the mandatory minimum 240 months of
imprisonment. Petitioner did not file a direct appeal. His
conviction became final on February 28, 2011, 14 days after
his guilty plea. Nearly six years later, Petitioner filed the
instant petition, his first, on January 9, 2017.
alleges that he received ineffective assistance of counsel
because his attorney 1) failed to appeal; 2) failed to
consult with Petitioner regarding an appeal; 3) failed to
notice an appeal, withdraw, or file a brief laying out why
grounds for appeal were frivolous (an Anders brief);
4) failed to challenge the relevant drug weight; 5) failed to
argue entrapment; 6) failed to argue against sentence
stacking; 7) failed to argue against the Government's
theory of the conspiracy; 8) failed to challenge the
statement of facts; 9) improperly waived preliminary hearing
and indictment; and 10) allowed petitioner to plead to a
instant petition was filed nearly six years after
Petitioner's conviction became final, the Court must find
that his petition is time-barred under 28 U.S.C. §
2255(0- 28 U.S.C. § 2255(f)'s one-year limitation
runs from 1) the date on which the judgment of conviction
became 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 was 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 (West 2008).
argues that he has recently learned of case law that would
have aided him in his case that his attorney should have
utilized prior to the plea agreement and that this newly
discovered (though not newly developed) case law constitutes
newly discovered facts, rendering his petition timely under
§ 2255(f)(4). Petitioner's argument would render
meaningless § 2255(f)'s time-bar. Newly discovered
case law does not constitute newly discovered facts as
required by § 2255(f)(4). Langley v. United
States, 2015 WL 2450537, at *3 (E.D. N.C. May 21, 2015).
also asserts that governmental action impeded his ability to
timely file the instant motion. Specifically, he contends
that section 6 of his plea agreement, in which he waived his
rights to request investigative records through the Freedom
of Information Act (FOIA), hindered his ability to gather
evidence necessary for his motion and constitutes a
government-made impediment under § 2255(f)(2).
Petitioner freely contracted away his FOIA rights in his plea
agreement, however, and the provision of the plea agreement
is enforceable. See United States v. Lucas, 141
Fed.Appx. 169 (4th Cir. 2005); Patterson v. F.B.I.,
2008 WL 2597656, at *2 (E.D. Va. June 27, 2008). Thus, the
Government's inclusion of the FOIA waiver cannot be an
"action in violation of the Constitution or laws of the
United States, " as required by § 2255(f)(2). Even
were such a waiver unconstitutional (despite Petitioner's
knowing and voluntary waiver of other constitutional rights
in the plea agreement), Petitioner cannot demonstrate that
the government action prevented him from timely filing the
instant petition. Indeed, Petitioner has failed to plead that
he ever filed FOIA requests and sought to compel the
government's response despite his plea waiver.
Accordingly, the instant petition cannot be considered timely
under any of the enumerated provisions of § 2255(1).
alternative to the express exceptions to § 2255(f)'s
procedural time-bar, Petitioner argues that he should benefit
from equitable tolling. Equitable tolling can overcome §
2255(f)'s time-bar where petitioner demonstrates that he
was diligently pursuing his rights or that some other
extraordinary circumstance stood in his way. United
States v. Grady, 2015 WL 4773236, at *5 (W.D. Va. Aug.
12, 2015). Petitioner makes no further argument on these
issues. Instead, Petitioner pleads that his actual innocence
should overcome the procedural hurdle. Demonstrated actual
innocence is sufficient to overcome § 2255(f)'s
time-bar. See McQuiggin v. Perkins, 133 S.Ct. 1924,
1928 (2013). However, Petitioner must show that the new
evidence demonstrates that "it is more likely than not
that no reasonable juror would have convicted him in light of
the new evidence." Schlup v. Delo, 513 U.S.
298, 329 (1995). While Petitioner has recited to the Court a
number of legal theories that he claims to demonstrate his
innocence as a matter of law. he has failed to plead any
facts that could demonstrate he is actually innocent of the
crime to which he pleaded guilty and innocent of the conduct
he admitted to in the statement of facts. See Langley v.
United States. 2015 WL 2450537. at *5 (E.D. N.C. May 21.
2015) (finding that a § 2255 petition asserting actual
innocence was "suspect at best in light of [the
petitioner's] guilty plea").
the instant petition is untimely and because Petitioner has
failed to demonstrate that § 2255(0(1)'s time-bar is
inapplicable, the instant petition is DENIED. Because
Petitioner has not made a substantial showing of the denial
of a constitutional right, the Court DENIES Petitioner a
certificate of appealability. The Clerk of Court is
instructed to mail a copy of this order to Petitioner.
 While the Court will not reach the
merits of these theories because of 28 U.S.C. §
2255(f)'s procedural bar to the instant petition.