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Pullins v. United States

United States District Court, N.D. Georgia, Atlanta Division

November 30, 2018


         MOTION TO VACATE 28 U.S.C. § 2255



         Movant has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence entered in this Court under the above criminal docket number. The matter is before the Court on the motion to vacate, [Doc. 65], Respondent's response, [Doc. 67], and Movant's reply, [Doc. 70]. For the reasons discussed below, the undersigned RECOMMENDS that Movant's motion to vacate be DISMISSED as untimely and that a certificate of appealability (COA) be DENIED.

         I. Background

         The grand jury for the Northern District of Georgia charged Movant in count one with possessing with intent to distribute cocaine base, in count two with possessing at least one firearm in furtherance of drug trafficking crimes, and in count three with possessing firearms as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Indictment, ECF No. 1.) On February 27, 2014, represented by Rodney Zell, Movant pleaded guilty to counts one and three. (Guilty Plea and Plea Agreement, ECF No. 38-1; Plea Hr'g Tr., ECF No. 57.) In pleading guilty, Movant agreed that, under count three (his § 922(g) charge), he was subject to a mandatory minimum term of fifteen years.[1] (See Guilty Plea and Plea Agreement at 3; Guilty Plea Tr. at 13, 19, 29.) The presentence investigation report (PSR) also stated that on count three, the statutory range of punishment was fifteen years to life, and Movant did not object. (See PSR at 1 and Addendum.)

         At sentencing, the Court found that Movant's guidelines range was 235 to 293 months, (Sentencing Tr. at 25, ECF No. 58), and by judgment entered on June 6, 2014, the Court imposed on Movant a total 250-month term of imprisonment, (J., ECF No. 50). The record does not indicate that Movant sought direct review.

         On January 19, 2016, Movant filed a letter, which the Clerk of Court construed as a motion to dismiss the case. (Mot. to Dismiss Case, ECF No. 59.) The Court found that Movant essentially challenged his conviction, that such challenge ordinarily should be brought via a § 2255 motion, that a § 2255 motion would be time-barred if the Court recharacterized Movant's letter as such, and that the United States Supreme Court discouraged sua sponte recharacterizing a pro se pleading as an initial § 2255 motion. (Op. and Order filed Aug. 31, 2016 at 2-3, ECF No. 61.) Accordingly, the Court denied Movant's motion to dismiss.[2] (Id. at 3.)

         On April 7, 2017, Movant filed a motion to extend the time for filing a § 2255 motion and argued that, due to transfers and being housed in facilities where he had been unable to conduct necessary research, he had been unable to file a § 2255 motion within the one-year limitations period. (Mot. for Extension at 2-3, ECF No. 63.) The Court found as follows -

[Defendant's] judgment of conviction . . . became final on June 20, 2014, fourteen days after judgement was entered on June 6, 2014. The limitations period began on June 20, 2014, and ended on June 20, 2015, one year later. Because Defendant seeks to file a Section 2255 motion after June 20, 2015, his Section 2255 motion is untimely.

(Op. and Order filed on May 5, 2017 at 3-4, ECF No. 64.) The Court found that Movant had not shown that he was entitled to equitable tolling[3] and denied his motion for an extension of time. (Id. at 4-5.)[4]

         On August 21, 2018, [5] Movant filed his instant motion to vacate. (Mot. to Vacate, ECF No. 65.) Movant complains in regard to count three, which was charged under § 922(g)(1) and § 924(a)(2) (dictating a prison term of not more than ten years) and on which he was sentenced under § 924(e) (dictating fifteen year minimum sentence for a person with three prior convictions for violent felonies or serious drug offenses who violates § 922(g)). (See Mem. in Support of Mot. to Vacate at 3-9, ECF No. 65-1.) Movant raises three grounds for relief. Movant asserts (1) that he is legally and factually innocent of the Armed Career Criminal Act (ACCA) enhancement, § 924(e), on which he was not formally charged in the indictment; (2) that he received ineffective assistance of counsel in regard to the § 924(e) enhancement, on which Movant was not formally indicted and which subjected him to a fifteen year minimum sentence instead of a ten year maximum;[6] and (3) that his sentence is unreasonable. (Mot. to Vacate at 5-6, 8; Mem. in Support of Mot. to Vacate at 2-8.) In regard to the timeliness of his motion, Movant appears to assert that his motion should be deemed timely because the Court lacked jurisdiction to impose his current sentence. (Mem. in Support of Mot. to Vacate at 10.)

         Respondent responds that this action is untimely, that nothing in the record contradicts the Court's prior finding that Movant failed to show that equitable tolling applies, that Movant fails to show that he is entitled to an actual innocence exception to the one-year limitations period, and that this action must be dismissed as untimely. (Resp't Resp. at 11-13, ECF No. 67.) Movant replies but does not add any significant argument in regard to timeliness. (Mov't Reply, ECF No. 70.)

         II. Discussion

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a one-year statute of limitations applies to § 2255 motions. Daniels v. United States, 809 F.3d 588, 589 (11th Cir. 2015), cert. denied, U.S., 137 S.Ct. ...

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