United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter comes before the Court on the motion of the defendant, Dwayne D. Morgan, to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. R. Doc. 22. The defendant asserts that the district court erred in sentencing him as a career offender under the provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"). There is no need for oral argument or for an evidentiary hearing. The Court finds that the defendant's motion is untimely.
On March 26, 2009, a federal grand jury indicted the defendant in a one-count indictment for being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). On July 22, 2009, the defendant withdrew his prior plea of not guilty and entered a plea of guilty in connection with the referenced charge. As part of the Plea Agreement, the defendant waived his right to appeal and to seek collateral review except under certain narrow circumstances and except as to claims of alleged ineffective assistance of counsel, and the United States agreed that no additional criminal charges would be brought against the defendant arising out of the offense alleged in the indictment.
The Court's Minute Entry of July 22, 2009, reflects that at the defendant's subsequent guilty plea colloquy, the Plea Agreement setting forth the terms of the agreement was filed, and the factual basis for the guilty plea was read into the record. The Minute Entry further reflects that the Court explained the defendant's rights to him at that time. The referenced Plea Agreement made clear that the maximum sentence faced by the defendant was ten (10) years in confinement but that, in the event that the defendant was found to have three (3) prior convictions for violent felonies or serious drug offenses, or both, committed on occasions different from one another, the maximum sentence faced by the defendant would be a term of imprisonment of not less than fifteen (15) years and not more than life. The Plea Agreement further provided that there was no agreement between the defendant and the United States as to the actual sentence that the Court would impose as a result of the plea agreement. Based upon statements made by the defendant at the plea colloquy, the Court found that the defendant had knowingly, voluntarily and intelligently, with the advice of counsel, entered into the Plea Agreement, and the Court accepted the defendant's guilty plea and ordered the preparation of a Pre-Sentence Investigation Report ("PSIR").
A PSIR was thereafter prepared and made available to the parties on November 13, 2009. At the petitioner's subsequent sentencing hearing on March 31, 2010, he was determined to have three prior felony convictions for violent offenses and was sentenced to serve fifteen (15) years in confinement in accordance with 18 U.S.C. § 924(e). The petitioner did not pursue a direct appeal of the conviction or sentence.
Finally, on or about April 24, 2014, four years after the entry of judgment, the petitioner has now filed the instant motion to vacate his sentence. He asserts that a recent decision of the United States Supreme Court, Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013), renders one or more of his three underlying predicate felony offenses ineligible for consideration as a crime of violence within the meaning of the ACCA. The petitioner further asserts that, because he has filed the instant motion within one year of the decision in Descamps, his motion is not barred by the one-year limitation period applicable to proceedings brought under 28 U.S.C. § 2255.
The general limitations period for seeking habeas corpus relief under § 2255 is one year after the conviction becomes final. 28 U.S.C. § 2255(f)(1). If the petitioner has not filed a direct appeal, a § 2255 application must be filed within one year after expiration of the 14-day period allowed for the filing of a direct appeal. United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008). In this case, the Court entered judgment on April 22, 2010. See R. Doc. 19. Accordingly, the 14-day period for filing a direct appeal elapsed on May 6, 2010. As a result, the deadline to file a motion to vacate pursuant to § 2255 expired one year later on May 6, 2011. The petitioner did not, however, file his § 2255 motion until April 24, 2014, approximately four (4) years after the expiration of the limitations period. As such, the instant motion is untimely under § 2255(f)(1) and should be dismissed unless another provision applies to the calculation of the appropriate limitations period or unless the petitioner is entitled to equitable tolling of the limitations period herein.
The petitioner argues that this Court should utilize 28 U.S.C. § 2255(f)(3) as the starting point for calculation of the one-year limitations period in this case. This section provides that, in appropriate circumstances, the limitations period runs from "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." The petitioner contends that the decision in Descamps v. United States, supra , has established a newly recognized right that is retroactively applicable to cases on collateral review. The decision in Descamps clarified the test utilized in Taylor v. United States, 495 U.S. 475 (1990), and Shepard v. United States, 544 U.S. 13 (2005), for determining whether a prior conviction constitutes a violent felony under the ACCA. See Descamps, supra, 133 S.Ct. at 2281-82.
Notwithstanding the petitioner's argument, he is mistaken in his assertion that Descamps alters the calculation of the limitations period in this case. Numerous courts have addressed this question and have concluded that Descamps is not retroactively applicable to cases on collateral review for the purposes of 28 U.S.C. § 2255(f)(3). See United States v. Chapman, 21 F.Supp. 3d 839 (S.D. Tex. 2014); Hawley v. United States, 2014 WL 5094106 (W.D. Tex. Oct. 10, 2014); Monroe v. United States, 2013 WL 6199955 (N. D. Tex. Nov. 26, 2013). Cf., Preston v. Ask-Carlson, 583 Fed.Appx. 462, 463 (5th Cir. 2014) (finding in the context of 28 U.S.C. § 2241 that Descamps "is not a retroactively applicable Supreme Court decision"). Accordingly, the petitioner cannot rely on Descamps to contend that § 2255(f)(3) applies to extend the limitations period in this case.
Nor has the petitioner shown that he is entitled to equitable tolling of the limitations period. "The doctrine of equitable tolling preserves a [petitioner's] claims when strict application of the statute of limitations would be inequitable." United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (internal quotation marks omitted). Because the one-year limitations period established by 28 U.S.C. § 2255(f) is not jurisdictional, it may be subject to equitable tolling in certain instances. United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002). The decision whether to apply equitable tolling, however, turns on the facts and circumstances of each case. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). A Court may apply equitable tolling only "in rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). See also Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (finding that traditionally, "[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights"). The petitioner bears the burden of establishing that equitable tolling is warranted. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on rehearing, 223 F.3d 797 (5th Cir. 2000). In order to satisfy this burden, the petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some ...