United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Tyshun Porter, a federal prisoner, seeks to have his sentence
vacated, set aside, or corrected pursuant to 28 U.S.C. §
2255 due to alleged prosecutorial misconduct and illegal
arrest. Doc. 1 at 4-5. For the reasons explained below,
Porter's petition is DENIED.
STANDARD OF REVIEW
conviction and sentencing, 28 U.S.C. § 2255 allows a
federal prisoner to file a motion in the sentencing court
“to vacate, set aside or correct the sentence” on
the basis “that the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such a sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack[.]”
28 U.S.C. § 2255(a). To obtain relief under § 2255,
a petitioner must: (1) file a non-successive petition or
obtain an order from the Eleventh Circuit authorizing a
district court to consider a successive § 2255 motion,
28 U.S.C. § 2255(h), § 2255 Rule 9; (2) file the
motion in the court where the conviction or sentence was
received, see Partee v. Attorney Gen. of Ga., 451 F.
App'x 856 (11th Cir. 2012); (3) file the petition within
the one-year statute of limitations, 28 U.S.C. §
2255(f); (4) be “in custody” at the time of
filing the petition, Spencer v. Kemna, 523 U.S. 1, 7
(1998); (5) state a viable claim for relief under the
heightened pleading standards of § 2255 Rule 2(b),
see also McFarland v. Scott, 512 U.S. 849, 856
(1994); and (6) swear or verify the petition pursuant to 28
U.S.C. § 1746. Finally, “[i]n deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
However, “if the record refutes the applicant's
factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary
jury found Porter guilty of Conspiracy to Commit Armed Bank
Robbery in violation of 18 U.S.C. § 371 (Count I) and
Bank Robbery in violation of 18 U.S.C. § 2113(a) (Count
II), the undersigned sentenced Porter to concurrent terms of
sixty months as to Count I, and two-hundred ten months as to
Count II. See doc. 92 in case no.
1:13-cr-00145-AKK-JEO. Porter timely appealed, arguing that
the court gave “erroneous jury instructions.”
Doc. 1 at 2. The Eleventh Circuit affirmed Porter's
conviction in an opinion “decided” on December
17, 2014, see 594 F. App'x 585 (11th Cir. 2014),
but “filed” on February 1, 2016, see
doc. 109 in case no. 1:13-cr-00145-AKK-JEO, and Porter did
not file a petition for certiorari. As a result,
Porter's conviction became final, at the latest, on May
1, 2016. Porter subsequently filed this § 2255
motion on July 3, 2017. Doc. 1 at 12.
petition asserts two grounds for relief: i.e., that
(1) he “received blatant and egregious prosecutor
misconduct when said prosecutor proceeded in unlawfully
manufacturing jurisdiction by filing falsified grand jury
indictment that was unsigned and not returned in open court,
” doc. 1 at 4; and that (2) he was “arrested in
the absolute clear absence of all jurisdiction when F.B.I.
agents proceeded in unlawfully arresting him without an
arrest warrant or probable cause, ” id. at 5.
initial matter, Porter's motion is untimely, because
Porter filed it after the one year period his conviction
became final. See 28 U.S.C. § 2255(f)(1).
Specifically, the conviction became final (at the latest) on
May 1, 2016, and Porter did not file this motion until July
3, 2017. The court is not persuaded by Porter's
contention that his motion is timely because it is his
“initial § 2255 motion and it is based solely upon
lack of subject matter jurisdiction pursuant to prosecutor
blatant and egregious misconduct via falsifying federal grand
jury indictment to gain subject matter jurisdiction and
having defendant unconstitutionally arrested by F.B.I.
special agents without both an arrest warrant or probable
cause.” Doc. 1 at 10.
Porter has procedurally defaulted on his claims for relief by
not raising either argument in his direct appeal.
See doc. 1 at 4-5. See also Lynn v. United
States, 365 F.3d 1225, 1234 (11th Cir. 2004) (defendant
defaults in a collateral proceeding when he could have raised
an issue on direct appeal but failed to do so); McCoy v.
United States, 266 F.3d 1245, 1258-59 (11th Cir. 2001)
(failure to raise claim makes the claim procedurally
defaulted, even if it was explicitly foreclosed by existing
circuit precedent at the time of defendant's direct
Porter's arguments fail on the merits. Specifically, as
to Porter's argument regarding alleged prosecutorial
misconduct, Porter asserts that the prosecutor “fil[ed]
a falsified federal grand jury indictment against [him] that
was never officially signed by an assistant and/or U.S.
Attorney and the graind [sic] jury foreperson as a
true bill . . . .” Doc. 2 at 1. Porter asserts that
“although said Indictment had electronic signature
typed on it, . . . said electronic signature typed words is
invalid and does not validate the actual signature law
requirement.” Id. The sealed version of the
indictment, doc. 1-1, however, bears the signature of the
foreperson of the grand jury and L. James Weil, Jr.,
Assistant United States Attorney. SEALED doc. 1-1 in case no.
1:13-cr-00145-AKK-JEO. As to Porter's contention that he
was arrested without a warrant, the docket sheet in
Porter's criminal case indicates that Magistrate Judge
John E. Ott issued a sealed arrest warrant as to Marcus
Tyshun Porter and two other individuals on April 29, 2013.
CONCLUSION AND ORDER
light of the foregoing, the court finds that Porter's
arguments are untimely, procedurally barred, and fail on the
merits. Accordingly, his § 2255 petition is
DENIED. The clerk is directed to close this
file, and to terminate doc. 111 in case no.
the 11th day ...