United States District Court, W.D. Virginia, Lynchburg Division
MEMORANDUM OPINION
NORMAN
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
Dewayne
L. Crews, proceeding pro se, filed a motion to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C.
§ 2255, challenging the sentence I imposed in July 2011
upon revoking his supervised release term. Crews is currently
in the custody of the Virginia Department of Corrections
(“VDOC”) and has an approximate release date of
September 16, 2021, according to the offender locator
information on VDOC's website. See
https://vadoc.virginia.gov/general-public/offender-locator
(last visited November 5, 2019). Thereafter, he will
presumably be transferred to the custody of the Bureau of
Prisons to serve the July 2011 sentence.
The
United States has moved to dismiss the motion as untimely.
(Dkt. No. 64.) Despite being notified of the filing of the
motion and his opportunity to respond (Dkt. No. 65), Crews
filed no response in this court. However, in another motion
submitted to the U.S. Court of Appeals for the Fourth Circuit
and returned to this court for docketing, he seeks to add
another ground to his § 2255 motion and he also offers
some statements concerning why his motion was not timely
filed. (See Dkt. No. 68.) Rather than treat the new
filing as a separate § 2255 motion, I directed the
Clerk's office to docket it as a supplemental motion.
Thus, I will treat the grounds in both motions as having been
raised in this case. I will also consider Crews'
statements as to timeliness as his response to the United
States' motion. Having considered the entire record, I
conclude that his motions must be dismissed as untimely.
I.
In
2004, after Crews pled guilty of distribution of cocaine
base, in violation of 21 U.S.C. § 841(a)(1), I sentenced
him to 88 months of imprisonment. (Dkt. No. 24.) His sentence
was later reduced pursuant to a sentencing guideline
amendment. (Dkt. No. 28.) He completed service of his initial
sentence and was released to serve his four-year term of
supervised release. On July 11, 2011, I found that Crews had
violated the terms of his supervised release, and I revoked
his release term and imposed a sentence of 52 months of
imprisonment. (Dkt. No. 44.) That revocation judgment, which
is the one Crews challenges in his § 2255 motion, was
entered on July 11, 2011.[1] That judgment was silent on the issue
of whether it should run consecutive or concurrent with any
state sentence. (Dkt. No. 44.) Crews did not
appeal.[2]
Crews
filed his § 2255 motion on May 7, 2019. The government
moved to dismiss the motion as untimely. As noted, Crews
failed to file a response, but I treat his statements
concerning timeliness in his later-filed § 2255 motion
(Dkt. No. 68) as arguments in opposition to the motion to
dismiss.
II.
A
motion under 28 U.S.C. § 2255 must be brought within one
year from the latest of the following: (1) the date on which
the sentence under attack became final, (2) the removal of
some governmental impediment to filing the motion, (3) the
date on which the legal predicate for the motion was
initially recognized by the United States Supreme Court, or
(4) the date on which the factual predicate for the motion
could have been discovered through the exercise of due
diligence. See 28 U.S.C. § 2255(f). For
purposes of the one-year limitations period under §
2255(f)(1), the defendant's conviction becomes final when
the last appeal is decided or the time to file such an appeal
expires. United States v. Johnson, 203 F.3d 823,
2000 WL 37753, at *1 (4th Cir. 2000) (unpublished table
decision); cf. Clay v. United States, 537 U.S. 522,
528 (2003) (holding that where a petition for certiorari is
not filed after a court of appeals decision, the conviction
is final when the time for filing the petition expired).
Crews' conviction became final on July 25, 2011, when his
time to file an appeal to the United States Court of Appeals
for the Fourth Circuit expired. Thus, he had until July 25,
2012, to file a timely § 2255 motion. Crews did not file
his federal habeas motion until nearly seven years after the
statute of limitations expired. Therefore, Crews' §
2255 motion is untimely if considered under §
2255(f)(1).[3]
A
district court may apply equitable tolling 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.” Whiteside
v. United States, 755 F.3d 180, 184 (4th Cir. 2014)
(en banc) (citations omitted). A petitioner seeking
equitable tolling must demonstrate that (1) he has been
pursuing his rights diligently, and (2) some extraordinary
circumstances beyond his control stood in his way and
prevented timely filing. Holland v. Florida, 560
U.S. 631, 649 (2010). The petitioner “bears a strong
burden to show specific facts” which demonstrate that
he fulfills both elements of the test. Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting
Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir.
2008)).
In his
motion (and including the claims brought in his amended
motion), Crews asserts two related claims for relief. In his
first motion, he asserts a single claim. Specifically, he
argues that the court should “review” the
sentence imposed and “either run its term concurrent
with” his state sentence now being served, or
“permit the petitioner to remain in state custody to
satisfy completion of” his federal sentence. (Dkt. No.
62 at 7.) In his second motion, he first asserts the same
basic ground for relief. (Dkt. No. 68 at 4.) Then, in his
second claim, he contends that he received ineffective
assistance of counsel at sentencing because counsel did not:
(1) ask the court to run the federal sentence concurrent; or
(2) inform Crews that he could ask for a “nunc pro
tunc” designation of a state facility for service of
his sentence, which would result in his state time being
credited against his federal sentence. (Id. at 6.)
He asks that the court grant the “nunc pro tunc”
designation so he will receive credit against his federal
sentence for time served in state custody. (Id. at
13.)
Crews
argues his motions should be deemed timely because he
“did not know” he could have his federal sentence
run concurrent with state time and did not know about the
possibility of a “nunc pro tunc” designation.
(Id. at 4, 11.) However, these circumstances are not
so extraordinary to warrant equitable tolling. As the Fourth
Circuit has explained, “even in the case of an
unrepresented prisoner, ignorance of the law is not a basis
for equitable tolling.” See United States v.
Sosa, 364 F.3d 507, 512 (4th Cir. 2004). In
Sosa, the court rejected the petitioner's
request for equitable tolling, noting that his
“misconception about the operation of the statute of
limitations is neither extraordinary nor a circumstance
external to his control.” Id. Likewise,
Crews' ignorance about the possibility of having his
sentences run concurrently is “neither extraordinary
nor a circumstance external to his control.” See
Id. Moreover, Crews has not shown that he has been
diligently pursuing his rights since his revocation sentence
became final in 2011. Accordingly, I conclude that Crews has
not demonstrated any ground for equitable tolling of the
statute of limitations, and I will dismiss Crews' §
2255 motions as untimely filed.
III.
For the
foregoing reasons, I will grant the government's motion
to dismiss (Dkt. No. 64) and dismiss both of Crews'
§ 2255 motions (Dkt. Nos. 62, 68) as untimely. Crews is
advised, however, that at the appropriate time he may seek a
nunc pro tunc designation directly from the Bureau
of Prisons. Hardin v. United States, No.
7:12-cv-01818-GRA, 2012 WL 3945314, at *2 (D.S.C. Sept. 10,
2012). If he properly exhausts his administrative remedies,
and the Bureau of Prisons denies his request, then a ...