United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Petitioner's' Motion to
Vacate (No. 2:16-cv-8146-RDP (“Habeas Docket”),
Doc. # 1), Petitioner's Addendum to 28 U.S.C. § 2255
(Id., Doc. # 2), and Petitioner's Motion to
Clarify Addendum to 28 U.S.C. § 2255 (Id., Doc.
# 3), all of which raise claims for relief under § 2255.
The motions have been fully briefed (see id., Docs.
# 6, 9, 10, 19, 22), and they are ripe for decision.
Factual and Procedural Background
September 2012, a grand jury indicted Petitioner on three
charges: (1) possessing crack cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C); (2) using and carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A); and (3) being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). (No. 2:12-cr-432-RDP-HGD (“Criminal
Docket”), Doc. # 1). In November 2012, Petitioner pled
guilty to all three counts. (Id., Doc. # 9 at 1). In
the plea agreement, Petitioner waived certain rights to
appeal and to post-conviction relief. (Id. at 7-8).
On February 28, 2013, the court adjudged Petitioner guilty on
all three counts, including “Possession of a Firearm
During and in Relation to a Drug Trafficking Crime, ”
in violation of 18 U.S.C. § 924(c)(1)(A). (Id.,
Doc. # 15 at 1). The court sentenced Petitioner to concurrent
sentences of 72 months' imprisonment as to counts 1 and
3, and a consecutive sentence of 60 months' imprisonment
as to count 2. (Id. at 2).
his sentencing, in April 2013, Petitioner sent a letter to
the court requesting a transfer from a state prison to a
federal prison. (Id., Doc. # 17). In September 2014,
Petitioner moved for the appointment of counsel to pursue a
sentence reduction under 18 U.S.C. § 3582.
(Id., Doc. # 18). In November 2014, Petitioner moved
for a sentence reduction under § 3582. (Id.,
Doc. # 19). The court denied that motion in November 2015.
(Id., Doc. # 23).
February 23, 2016, Petitioner filed his initial § 2255
motion. (Habeas Docket, Doc. # 1 at 2). In this motion,
Petitioner claims that his trial counsel rendered ineffective
assistance by not advising him of his right to appeal.
(Id. at 1). Petitioner avers that he “plainly
evinced his intent to appeal immediately after the
sentencing, ” but counsel never filed an appeal as
instructed. (Id. at 1-2).
April 20, 2016, Petitioner filed an addendum to his motion to
vacate containing additional claims. (Id., Doc. # 2
at 4). First, Petitioner asserts that his trial counsel
failed to inform him of the prosecutor's willingness to
drop a charge. (Id. at 1-2). Second, Petitioner
claims that his trial counsel acted ineffectively by failing
to raise an actual innocence defense under Bailey v.
United States, 516 U.S. 137 (1995). (Id. at 2).
Third, Petitioner argues that trial counsel should have
obtained a psychological evaluation for him because he lacked
the mental capacity to consult with his attorney or
understand the nature of the proceedings against him.
(Id. at 3). Finally, Petitioner claims that trial
counsel should have argued for mitigation based on
Petitioner's family circumstances. (Id. at 3-4).
14, 2016, Petitioner submitted a second addendum to his
§ 2255 motion. (Id., Doc. # 3 at 4). In this
addendum, Petitioner claims that his § 924(c) conviction
should be vacated because the statute's definition of a
“crime of violence” is unconstitutionally vague
in light of the Supreme Court's opinion in Johnson v.
United States, 135 S.Ct. 2551 (2015). (Id. at
September 2016, the court advised Petitioner that most of his
§ 2255 claims (except for the Johnson claim)
appeared to be time-barred by the statute of limitations in
28 U.S.C. § 2255(f)(1). (Id., Doc. # 5 at 1).
The court also informed Petitioner that the limitations
period could be subject to equitable tolling, but it found
nothing in the record before it to justify such tolling.
(Id. at 3-4). Accordingly, the court granted
Petitioner an opportunity to explain why the
non-Johnson claims in the motion to vacate were
timely filed. (Id. at 4). In response, Petitioner
argued for equitable tolling because his trial counsel
discouraged him from filing an appeal, his trial counsel
refused to accept calls from him, and he contends that he
pursued his rights diligently in the face of counsel's
ineffectiveness. (Id., Doc. # 6 at 2-3).
careful review, the court concludes that most of
Petitioner's non-Johnson claims are time-barred,
and his Johnson claim, although not time-barred, is
All of Petitioner's Claims, Except for the
Johnson Claim, Are Time-Barred
motion to vacate is subject to a one-year statute of