United States District Court, E.D. Louisiana
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court is petitioner Frankie Hookfin's
(“Hookfin”) motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. Hookfin's
motion is untimely, and it is, therefore, denied.
September 22, 2015, Hookfin pleaded guilty to one count of
conspiracy to possess with the intent to distribute and to
distribute one kilogram or more of heroin and 280 grams or
more of cocaine base and one count of using a firearm during
and in relation to the commission of a drug trafficking crime
that resulted in the death of an individual. On April 21,
2016, the Court sentenced Hookfin to a term of imprisonment
of 420 months. Hookfin timely appealed his sentence and
conviction. However, Hookfin's appeal was
dismissed, pursuant to his own motion, on August 25,
for habeas relief brought pursuant to 28 U.S.C. § 2255
are subject to a one-year statute of limitations. This
limitation period runs from the latest of four possible
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) 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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f).
first of these dates is the only one relevant
here. As stated, Hookfin was sentenced on April
21, 2016 and he filed an appeal that was dismissed upon his
own appellate rights. It is anticipated that this Notice will
likely be withdrawn shortly, as motion on August 25, 2016.
Hookfin filed the instant petition nearly two years later, on
July 12, 2018. Hookfin's petition is untimely, as it
was not filed-by any calculation-within one year of the date
on which the judgment of his conviction became
the Court notes that Hookfin's petition is not subject to
equitable tolling. The Anti-Terrorism and Effective Death
Penalty Act's (AEDPA) one-year limitations period is
subject to equitable tolling, but only “in rare and
exceptional circumstances.” United States v.
Petty,530 F.3d 361, 364 (5th Cir. 2008) (quoting
Davis v. Johnson,158 F.3d 806, 811 (5th Cir.
1998)). “A § 2255 motion is subject to equitable
tolling upon a federal prisoner's showing ‘(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way'” of
filing his motion timely. United State v. Taylor,
14-192, 2018 WL 3619438, at *2 (E.D. La. July 30, 2018)
(Fallon, J.) (quoting Petty, 530 F.3d at 364-65).
The Fifth Circuit has found equitable tolling appropriate
when the petitioner has been misled by the district court
about the filing of his petition, but it has not found it
appropriate due to a petitioner's pro se status.
United States v. Wynn,292 F.3d ...