United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge
Matthew Pierce, 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 on June
22, 2015, sentencing him to, inter alia, 210
months' incarceration after he pleaded guilty to
distributing heroin that resulted in serious bodily injury
and death, in violation of 21 U.S.C. § 841(a)(1).
Petitioner did not appeal, and he filed the instant §
2255 motion no earlier than March 6, 2018. Petitioner argues
that the United States Sentencing Guidelines were,
erroneously calculated for his sentence and that counsel
rendered ineffective assistance during the plea and
sentencing phases. The court conditionally filed the §
2255 motion, advised Petitioner that the § 2255 motion
appeared to be untimely, and gave him the opportunity to
explain why the court should consider it timely filed.
Petitioner explains in response that the motion is timely
filed on account of United States Supreme Court cases
Rosales-Mireles v. United States, No. 16-9493, and
Class v. United States, No. 16-424.
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 July 2015 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 thirty months after
his conviction became final.
argues that his motion should be considered timely filed
within one year of Rosales-Mireles v. United States.
No. 16-9493, and Class v. United States. No. 16-424.
The Supreme Court has not yet decided Rosales-Mireles v.
United States. In Class, the Supreme Court held
on February 21, 2018, that a guilty plea ordinarily does not
bar a federal criminal defendant from appealing the
conviction to challenge the constitutionality of the statute
of conviction. Class v. United States__. U.S.__, 200
L.Ed.2d 37, 41 (2018). Petitioner fails to establish that
Class has any bearing on the timeliness of the
§ 2255 motion. Cf 28 U.S.C.§ 2255(a) (already
permitting a collateral attack for, inter alia, a
sentence imposed in violation of the Constitution).
Consequently, neither Rosales-Mireles nor
Class triggers the filing period pursuant to 28
U.S.C. § 2255(f)(3). Moreover, neither case qualifies as
a "new fact" for purposes of 28 U.S.C. §
2255(f)(4). See, e.g., Whiteside v. United
States, 775 F.3d 180, 183-84 (4th Cir. 2014).
Accordingly, § 2255(f)(1) is the appropriate limitations
period, and Petitioner filed the § 2255 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, 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). Also, Petitioner's invocation of the label
"miscarriage of justice, " purportedly caused by
ineffective assistance of counsel, is not sufficiently
"convincing" to bypass the statute of limitations.
See, e.g., McQuiggin v. Perkins, 569 U.S.
383, 399 (2013) (discussing the high threshold to establish a
"convincing" miscarriage of justice claim);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(noting labels and conclusions are insufficient to state a
claim). 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.
Petitioner's motions for a transcript in support of the
§ 2255 motion (ECF Nos. 42, 45) are denied as moot.
Petitioner also invokes 28 U.S.C.
§ 2255(e), commonly known as the "savings
clause" of § 2255. The court lacks jurisdiction to
convert the invocation into a "savings clause"
argument arising under 28 U.S.C. § 2241 because
Petitioner is not housed within this district. See,
e.g., 28 U.S.C. § 2241(a) (discussing territorial
limitation); Reves-Requena v. United States. 243