United States District Court, N.D. Georgia, Atlanta Division
June 10, 2015
QUENTARVIOUS CHANEY, Movant,
UNITED STATES OF AMERICA, Respondent. Civil Action No. 1:12-cv-3145
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge Alan J. Baverman's Report and Recommendation  ("R&R"). The R&R recommends that Movant Quentarvious Chaney's ("Movant") pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion")  be dismissed as untimely and that a certificate of appealability be denied.
On July 2, 1991, Movant was convicted in DeKalb County, Georgia, of: (1) burglary (case no. 91-CR-1087); (2) two counts of burglary and one count to attempt to commit burglary (case no. 91-CR-3022); and (3) aggravated sodomy and child molestation (case no. 91-CR-1279). On December 19, 2011, Movant was also convicted in DeKalb County, Georgia, of possession of a firearm by a felon (case no. 01-CR-5027).
On March 22, 2008, a grand jury sitting in the Northern District of Georgia returned a one-count Indictment (the "Indictment") , charging Movant with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The Indictment included a forfeiture provision. On July 20, 2009, Movant appeared before the Court and pleaded guilty to the charge .
On February 1, 2010, the Court sentenced  Movant to the mandatory minimum sentence of 180 months of imprisonment, followed by three (3) years of supervised release.
On August 16, 2010, Movant's conviction and sentence were affirmed by the Eleventh Circuit Court of Appeals. See United States v. Chaney, 392 F.Appx. 790, 792 (11th Cir. 2010). Movant did not seek a writ of certiorari from the United States Supreme Court.
On August 10, 2012,  Movant submitted a letter to the Court, which the Magistrate Judge construed as his Motion. Movant argues that his attorney's failure to file a Section 2255 Motion on his behalf warrants equitable tolling of the one-year limitations period. Movant also appears to argue that he should be afforded a later start date for the one-year limitations period under 28 U.S.C. § 2255(f)(3) because his claim challenging his sentence relies upon the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013). Movant contends also that his sentence was improperly enhanced under the ACCA making him "actually innocent of being an Armed Career Criminal under 18 U.S.C. § 924(e)." (See  at 1).
On July 29, 2014, the Magistrate Judge issued his R&R, recommending that the Motion be denied as untimely and that a certificate of appealability be denied.
Movant did not file any objections to the R&R.
A. Legal Standard
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59; Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (internal quotation marks omitted). With respect to those findings and recommendations to which objections have not been asserted, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
1. Movant's Motion
A Section 2255 motion is subject to a one-year statutory limitations period, which runs from the latest of the following:
(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 exercise of due diligence.
28 U.S.C. § 2255(f)(1-4).
On November 15, 2010, ninety (90) days after the Eleventh Circuit affirmed his sentence, Movant's conviction became final. See Clay v. United States, 537 U.S. 522, 525 (2003) ("[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction."); Sup.Ct. R. 13(1) (providing that a petition for a writ of certiorari must be filed within ninety days after the entry of judgment). Noting that 28 U.S.C. § 2255(f)(1) requires that Section 2255 motions be filed within one (1) year of a conviction becoming "final, " the Magistrate Judge concluded that the limitations period for Movant to file a Section 2255 motion expired on November 15, 2011. See 28 U.S.C. § 2255(f)(1). Nearly nine (9) months later, on August 10, 2012, Movant filed his Motion. The Court finds no plain error in the Magistrate Judge's finding that Movant's Motion is untimely and thus time-barred.
The Magistrate Judge also found that Movant has not alleged extraordinary circumstances to justify the late filing of his Motion and that the failure of his attorney to file a Section 2255 motion does not establish egregious attorney misconduct to justify equitable tolling. See Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)(per curiam) ("Equitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence."). Equitable tolling is only available for attorney misconduct when the "attorney's behavior [is] so outrageous or so incompetent as to render it extraordinary." Byers v. U.S., 561 F.3d 832, 835 (8th Cir. 2009). "Mere attorney negligence does not justify equitable tolling... For a [movant] to be entitled to equitable tolling, there must be egregious attorney misconduct, such as proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer's part." Scott v. Duffy, 372 F.Appx. 61, 63 (11th Cir. 2010) (per curiam) (citations and internal quotation markes omitted). The Court finds no plain error in the Magistrate Judge's finding that Movant's allegation that his attorney failed to file a Section 2255 motion does not establish egregious attorney misconduct and does not excuse the late filing of his Motion.
2. Certificate of Appealabilty
Rule 11 of the Rules Governing Section 2255 Cases in the United States District Courts provides that "[t]he district court must issue or deny a certificate of appealability [under 28 U.S.C. § 2253(c)] when it enters a final order adverse to the applicant." See R. Governing § 2255 Cases 11(a). Section 2253(c)(2) provides that a certificate of appealability shall not issue unless "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A substantial showing is a showing that "reasonable jurists could debate whether... the petition should have been resolved in a different manner." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks omitted). Where a habeas petition is denied on procedural grounds without reaching the prisoner's underlying constitutional claim, "a certificate of appealability should issue only when the prisoners shows... that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (citing Slack, 529 U.S. at 484). The Court thus finds no plain error in the Magistrate Judge's recommendation that a certificate of appealability be denied because reasonable jurists could not disagree that Movant's Motion is required to be dismissed because it is untimely.
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman's Final Report and Recommendation  is ADOPTED.
IT IS FURTHER ORDERED that Movant Quentarvious Chaney's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence  is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.