Clayton v. USA, No. 1:2017cv00275 - Document 16 (E.D. Tenn. 2020)
Court Description: MEMORANDUM AND OPINION.Signed by District Judge Harry S Mattice, Jr on July 1, 2020. (SAC)Mailed to Clayton.
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Clayton v. USA Doc. 16 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA MARCIE VELVET CLAYTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) ) No. 1:17-cv-275, 1:15-cr-50 J udge Mattice Magistrate J udge Lee MEMORAN D U M OPIN ION On October 2, 20 17, federal inm ate Marcie Velvet Clayton filed a m otion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. Clayton argues she was deprived of her right to effective assistance of counsel due to her trial counsel’s failure to properly advise her during the plea negotiations and failure to file a direct appeal on her behalf. [Doc. 1]. As ordered, the United States filed a response to Clayton’s Motion [Doc. 4], to which she replied [Doc. 5]. She has since filed two m otions to am end [Docs. 8 & 13], a m otion seeking perm ission to serve discovery on her form er counsel [Doc. 11], and several other m otions. Having considered the pleadings and the record, along with the relevant law, the Court finds there is n o need for an evidentiary hearing 1 and Clayton’s § 2255 m otion 1 An evidentiary hearing is required on a § 2255 m otion unless the m otion, files, and record conclusively show that the prison er is not entitled to relief. See 28 U.S.C. § 2255(b). It is the prisoner’s ultim ate burden, however, to sustain his claim s by a preponderance of the evidence. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 20 0 6). Accordingly, where “the record conclusively shows that the petition er is entitled to no relief,” a hearing is not required. Arredondo v . United States, 178 F.3d 778 , 78 2 (6th Cir. 1999) (citation om itted). Dockets.Justia.com [Doc. 1] will be D EN IED . The m otions to am end [Docs. 8 & 13] and will likewise be D EN IED and her m otion for discovery [Doc. 11] D EN IED AS MOOT. I. BACKGROU N D FACTS AN D PROCED U RAL H ISTORY On April 28, 20 15, a grand jury indicted Clayton on one count of conspiracy to distribute 50 gram s or m ore of m etham phetam ine and possession with intent to distribute 50 gram s or m ore of m etham phetam ine. [Case No. 1:15-cr-50 , Crim . Doc. 22]. Pursuant to a written plea agreem ent, Clayton pled guilty to the conspiracy charge. [Crim . Doc. 54]. The plea agreem ent also reflects the Governm ent’s intent to file a § 851 enhan cem ent: The United States will file an enhancem ent under 21 U.S.C. § 851 listing one prior drug felony conviction for the defendant. As a result of this conviction and enhancem ent, the punishm ent for this offense is as follows: Im prisonm ent for at least 20 years an d up to life; followed by a 10 -year period of supervised release; and a fine of up to $ 20 m illion dollars. [Id. at 1]. The agreem ent also indicates the Governm ent would m ove to dism iss the rem aining counts at sentencing. [Id]. In the plea agreem ent, Clayton also waived her right to file any m otions pursuant to § 2255 other than those alleging prosecutorial m iscon duct or ineffective assistance of counsel. [Id. at 7]. The presentence report indicates a statutory m andatory m inim um of 20 years im prisonm ent, resulting in a functional guideline range of 240 m onths. [Crim. Doc. 10 8 at 15]. Absent the enhancem ent, Clayton’s guideline im prisonm ent range would have been 135 to 168 m onths. [Id.]. On March 21, 20 16, the Court granted a Governm ent m otion for downward departure and sentenced Clayton to 135 m onths’ im prisonm ent and 5 years of supervised release. [Crim . Doc. 113 at 2]. Clayton did not appeal and her conviction therefore becam e final on April 4, 20 16. 2 On October 2, 20 17, Clayton’s Motion to Vacate [No. 1:17-cv-0 0 275, Doc. 1] was docketed. The Motion was executed by Clayton on Septem ber 25, 20 17. [Id.]. Clayton concedes her m otion is untim ely, but argues it is “due in part to the transfer of prisoners, and because of a delay in receiving her legal work to proceed.” [Id. at 12]. Her m otion raises two ineffective assistance of counsel argum ents. First, she argues she was deprived of her right to effective assistance of counsel because her trial counsel failed to advise her “about the m ost likely consequence she was facing if she rejected the governm ent’s first plea agreem ent, because counsel failed to m ention that she would be facing a m andatory m inim um of 20 years to life under an 851 enhancem ent.” [Id. at 4]. For her second ground, she says she instructed her trial counsel to file and prosecute a direct appeal and he did not do so. [Id. at 5]. The Governm ent argues Clayton’s m otion is untim ely and that she is not entitled to equitable tolling. [Doc. 4]. It concedes that if tim ely, an evidentiary hearing on the m otion is required. II. LEGAL STAN D ARD After a defendant has been convicted and exhausted his appeal rights, a court m ay presum e that “he stands fairly and finally convicted.” United States v. Frady , 456 U.S. 152, 164 (1982). A court m ay grant relief under 28 U.S.C. § 2255, but the statute “does not encom pass all claim ed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, collateral attack lim its a m ovant’s allegations to those of constitutional or jurisdictional m agnitude, or those containing factual or legal errors “so fundam ental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 68 6, 691 (6th Cir. 20 0 6) (citation om itted); see also 28 U.S.C. § 2255(a). 3 III. AN ALYSIS A. Mo tio n to Vacate Petitioner’s collateral attack is tim e-barred and she has not presented any justification for tolling the lim itations period. Section § 2255(f) gives a federal defen dant one year to file a m otion to vacate. That tim e period begins from the latest of: (1) the date on which the judgm ent of conviction becom es final; (2) the date on which the im pedim ent to m aking a m otion created by governm ental action in violation of the Constitution or laws of the United States is rem oved, if the m ovant was preven ted from m aking a m otion by such governm ental action; (3) the date on which the right asserted was initially recognized by the Suprem e Court, if that right has been newly recognized by the Suprem e Court and m ade retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claim s presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). Petitioner did not take a direct appeal and her conviction therefore becam e final fourteen days after its entry, when the tim e to file a direct appeal expired. See Fed. R. App. P. 4(b)(1)(A) (providing fourteen days for direct appeal); Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 20 0 4)(“[W]hen a federal crim inal defendant does not appeal to the court of appeals, the judgm ent becom es final upon the expiration of the period in which the defendant could have appealed to the court of appeals, even when no notice of appeal is filed.”); Blain v. United States, 766 F. App’x 327, 329 (6th Cir. 20 19) (absent direct appeal, conviction becam e final fourteen days after judgm ent was entered). Petitioner was required to file her m otion to vacate within one year of April 4, 20 16, unless a different subsection of 2255(f) renders her petition tim ely. 4 Clayton argues equitable tolling should apply to her late-filed petition. She says she was in transit for m ore than 120 days and did not receive her legal m aterials for another 60 days. [Doc. 2 at 10 ]. She says the county jail (in which she was presum ably incarcerated during transit) did not have adequate legal m aterials and she did not have access to her own. [Id.]. She does not explain why she was unable to prepare her petition during the 60 days in which she waited for her personal legal m aterials, or in the six to eight m onths in which she was neither in transit nor awaiting her personal effects. She does not claim that she was unaware of the filing deadline. “Courts grant equitable tolling ‘sparingly,’ and a habeas petitioner is entitled to equitable tolling only if he shows that (1) ‘he has been pursuing his rights diligently, an d (2) ‘som e extraordinary circum stance stood in his way and prevented tim ely filing.’” Blain, 766 F. App’x at 330 (quoting Hall v. W arden, Lebanon Corr. Inst., 662 F.3d 745, 749-50 (6th Cir. 20 11)). The United States Court of Appeals for the Sixth Circuit has rejected equitable tolling in factual circum stances very sim ilar to those here. United States v. Stone, 68 F. App’x 563 (6th Cir. 200 3). In Stone, the petitioner filed his § 2255 m otion alm ost eight m onths after his conviction becam e final. He argued he was unable to tim ely subm it his m otion to vacate because he was transferred from a federal prison to a state jail and was not allowed to bring his personal property or legal m aterials with him . Id. at 565. He was also not allowed to do legal research. Id. Stone adm itted, however, that he was aware of the lim itation period. Id. The Sixth Circuit found that “Stone had alm ost six m onths before he was transferred to…jail in which to file his § 2255 m otion.” Id. Stone also argued that he did not have sufficient library access, but “allegations regarding insufficient library access, standing alone, do not warrant equitable tolling.” Id. The court found Stone had failed to establish that equitable tolling should apply. Id. 5 True, the Sixth Circuit has allowed equitable tolling where a prison transfer is accom panied by other factors beyond a petitioner’s control and a petitioner’s diligen ce is established. Jones v. United States, 689 F.3d 621 (6th Cir. 20 12). That is not the case here. In Jones, the petitioner’s m otion to vacate was based on a new rule of substantive law announced in April 20 0 8, but J ones was not aware of the Suprem e Court’s decision until May 20 0 9. Id. at 627. The court acknowledged that generally, a prisoner’s lim ited access to a law library an d pro se status are insufficient to qualify as extraordinary circum stances to justify equitable tolling. Id. But J ones’s ignorance of the Suprem e Court decision was due in large part to four unexpected m oves in the m onths preceding and im m ediately following the Court’s decision, during which tim e he did not have his legal m aterials. Id. at 627. He was partially illiterate and relied on other prisoners for knowledge of changes in the law. Id. He also had a variety of m edical conditions, including seizures, that required frequent m edication and m ade it difficult for him to obtain legal inform ation. Id. Finally, J ones averred that throughout his transfers, he was constantly questioning others for legal advice, and when he learn ed of the change in law, filed his petition within two m onths. Id. The Sixth Circuit observed that individually, these factors m ight n ot constitute extraordinary circum stances. Id. at 627-28. Taken together, however, it found them sufficient, and further found J ones had dem onstrated he was not sleeping on his rights. Id. The court reversed the district court and rem anded for further proceedings. Id. Sim ilarly, in Solom on v. United States, 467 F.3d 928 (6th Cir. 20 0 6), the Sixth Circuit found equitable tolling where the petitioner had lim ited law library access and was 6 unable to obtain his trial transcript. 2 As in Jones, Solom on’s tim eline was triggered by a change in the law – after the enactm ent of the Antiterrorism and Effective Death Penalty Act, prisoners had one year within which to bring a habeas petition. 3 Solom on did not hear of the new deadlin e for m any m onths due to the poor circulation of legal inform ation in the prison in which he was incarcerated. Id. at 933. He averred he had worked diligently day and night, but that in the first few m onths of 1997, there was a huge dem and for lim ited library resources due to the AEDPA deadline. Id. He was then transferred unexpectedly a m onth before his deadline without his legal m aterials. Id. at 934. He was placed in adm inistrative detention, transferred again, and then transferred back to his original prison. Id. During this tim e he repeatedly sought filing inform ation and also filed a notice of intent to file a § 2255. Id. He com pleted his petition within a m onth of returning to his original prison. Id. Under these facts, the Sixth Circuit found the petitioner was entitled to equitable tolling. There are crucial distinctions between these cases and Petitioner’s. In both Solom on and Jones, the petitioners were not initially aware that the clock had begun ticking on their rights. Their access to a law library and legal m aterials was thus pertinent to when they discovered the legal basis for their claim s and whether they diligently pursued their m otions. The Jones court acknowledged this distinction: “Even though knowledge of filing deadlin es is no longer part of our inquiry, we note the inherent differences between when the clock starts upon the conclusion of direct appeal and when the clock starts upon issuance of a new Suprem e Court case.” 689 F.3d at 627 n.4. 2 Solom on was decided under the obsolete five-factor test set forth in Dunlap v. United States, 250 F.3d 10 0 1 (6th Cir. 20 0 1), since replaced by consideration of extraordinary circum stances and due diligence. However, the Sixth Circuit has “continued to rely on its analysis of potential considerations when applying the new test.” Jon es, 68 9 F.3d at 628 n. 5. 3 Prior to the AEDPA, a m otion under § 2255 could be brought at any tim e. Id. at n.2. 7 Although inm ates are expected to have knowledge of both, “it would strain credulity to suggest that a defendant has the sam e level of access to inform ation about the issuance of new Suprem e Court cases as he does about his direct appeal.” Id. Here, Petitioner does n ot contend she was unaware of the lim itations period. With respect to her contention that her lawyer failed to adequately advise her in rejecting an earlier plea deal, she would have been aware of this failure before her senten cing. Likewise, she does not allege a delay in discovering that her lawyer did not file an appeal on her behalf. In fact, Petitioner provides no tim eline of her transfers or the purported delays in accessing her legal m aterials. She appears to allege she was unable to begin her m otion for approxim ately 4-6 m onths after her senten ce becam e final. [See Doc. 5 at 2 (“[D]ue diligence cannot take place until she reaches the prison.”)]. She does not allege that anything prevented her from preparing and filing the m otion in the 6-8 m onths that followed. Accordingly, she has not m et her burden of dem onstrating she was diligent in pursuing her claim s or that extraordinary circum stances beyond her control prevented her from preparing and tim ely filing her petition. See Jones, 689 F.3d at 628. Petitioner’s reliance on § 2255(f)(2) and (4) are sim ilarly unavailin g. She has not alleged an im pedim en t to her m otion created by “governm ent action in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(f)(2). She has sim ply alleged she was transferred and unable to effectively prepare her petition during that tim e. Likewise, she did not discover new facts supporting her claim . All of the facts relevant to her m otion would have been known to her when her lawyer failed to file an appeal. B. Mis ce llan e o u s Mo tio n s Clayton also filed two m otions to am end. [Docs. 8 & 13]. In her first m otion, she indicates that, while she is still proceeding pro se, she expects legal assistance and would 8 like to subm it a new petition with the aid of an attorney. [Doc. 8 ]. In her second m otion, she indicates her fam ily and a third party have obtained case files that her form er counsel allegedly did not provide to her. [Doc. 13]. She seeks leave to expand the record to subm it this new inform ation, but does not indicate its contents or significance. Neither m otion presents new inform ation or a basis for tolling the lim itations period. The m otions instead seek to expand upon her tim e-barred claim s and will therefore be D EN IED AS MOOT. Likewise, because the m otion to vacate is untim ely, Petitioner is not entitled to discovery regarding her substantive claim s. The Motion for Leave to Serve Interrogatories [Doc. 11] is therefore D EN IED AS MOOT pursuant to Rule 6(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts. IV. CERTIFICATE OF APPEALABILITY When considering a § 2255 m otion, this Court m ust “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, Rules Governing Section 2255 Proceedings for the United States District Courts. Petitioner m ust obtain a COA before she m ay appeal the denial of her § 2255 m otion. 28 U.S.C. § 2253(c)(1)(B). A COA will issue “only if the applicant has m ade a substantial showing of the denial of a con stitutional right.” 28 U.S.C. § 2253(c)(2). For cases rejected on their m erits, a m ovant “m ust dem onstrate that reasonable jurists would find the district court’s assessm ent of the constitutional claim s debatable or wrong” to warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (20 0 0 ). To obtain a COA on a claim that has been rejected on procedural grounds, a m ovant m ust dem onstrate “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in 9 its procedural ruling.” Id. Based on the Slack criteria, the Court finds that a COA should not issue in this cause. V. CON CLU SION For the reasons stated herein, Petitioner has failed to establish an y basis upon which § 2255 relief could be granted, and it is therefore ORD ERED that her § 2255 m otion [Civ. Doc. 1] is D EN IED . It is FU RTH ER ORD ERED that the Motion to Am end [Civ. Doc. 8 ] and Second Motion to Am end [Civ. Doc. 13] are D EN IED ; the Motion for Leave to Serve Interrogatories [Civ. Doc. 11] is D EN IED AS MOOT. A certificate of appealability from the denial of Petitioner’s § 2255 m otion will be D EN IED . A separate judgm ent will enter. SO ORD ERED this 1st day of J uly, 20 20 . _ _ _ _ / s/ Harry S. Mattice, Jr._ _ _ _ _ HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 10
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