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Russaw v. United States

United States District Court, N.D. Alabama, Southern Division

May 23, 2018




         This 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.

         I. Factual and Procedural Background

         In 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).

         After 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).

         On 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).

         On 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).

         On July 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 3-4).

         In 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).

         II. Analysis

         After 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 meritless.

         A. All of Petitioner's Claims, Except for the Johnson Claim, Are Time-Barred

         Petitioner's motion to vacate is subject to a one-year statute of ...

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