Amey v. United States
| Decision Date | 21 August 2020 |
| Docket Number | Case No. 1:17-cr-104,Case No. 1:20-cv-184 |
| Parties | ANTHONY AMEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Tennessee |
MEMORANDUM OPINION
Before the Court are Petitioner Anthony Amey's motions to set aside, vacate, or correct his sentence filed pursuant to 28 U.S.C. § 2255. (Docs. 34, 36 in Case No. 1:17-cr- 104; Doc. 1 in Case No. 1:20-cv-184.) For the following reasons, the Court will DENY Petitioner's motions.
On July 25, 2017, a grand jury returned a one-count indictment charging Petitioner with possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). (Doc. 1 in Case No. 1:17-cv-104.) On December 5, 2017, Petitioner entered into a plea agreement with the Government pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. (Doc. 14 in Case No. 1:17-cv-104.) As part of the agreement, Petitioner and the Government agreed that a sentence of 132 months' incarceration followed by a three-year term of supervised release was an appropriate disposition of his case. (Id. at 3.) The plea agreement further provides that Petitioner "knowingly and voluntarily waives the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255 or to collaterally attack [his] conviction(s) and/or resulting sentence," but also states that "the parties agree that [Petitioner] retains the right to raise, by way of collateral review under § 2255, claims of ineffective assistance of counsel or prosecutorial misconduct not known to the defendant by the time of the entry of judgment." (Id. at 5.)
On April 9, 2018, after accepting the parties' plea agreement, United States District Court Judge Harry S. Mattice, Jr. conducted Petitioner's sentencing hearing. Petitioner's presentence report classified him as a career offender pursuant to § 4B1.1 of the United States Sentencing Guidelines based on prior Tennessee state-court convictions for arson and attempted aggravated assault. (Doc. 25, at 5 in Case No. 1:17-cr-104.) Based on his career-offender classification, Judge Mattice calculated Petitioner's advisory guidelines range as 151 to 188 months' imprisonment. (See Doc. 28 in Case No. 1:17-cr-104). Consistent with the terms of Petitioner's plea agreement, Judge Mattice sentenced Petitioner to 132 months' imprisonment and three years of supervised release. (Doc. 27 in Case No. 1:17-cv-104.) Petitioner did not appeal his conviction or sentence, but, in his § 2255 motion, asserts that he "unequivocally instructed sentencing counsel to file a notice of appeal on April 17, 2018 to challenge whether his Tennessee arson constituted a crime of violence under the U.S. Sentencing Guidelines." (Doc. 1, at 2-3 in Case No. 1:20-cv-184.)
Petitioner filed a § 2255 motion on June 8, 2020 (Doc. 34 in Case No. 1:17-cr-104), and filed an amended § 2255 motion on July 1, 2020 (Doc. 1 in Case No. 1:20-cv-184; Doc. 36 in Case No. 1:17-cr-104).1 In his motion, Petitioner asserts that he is entitled to relief because: (1) he received ineffective assistance of counsel because his prior arson conviction did not qualify asa crime of violence and his counsel failed to object to his career-offender designation; (2) he is "actually innocent" of his underlying career-offender designation; (3) he received ineffective assistance of counsel when his counsel failed to file a notice of appeal after he instructed him to do so; and (4) his underlying Tennessee arson conviction "was obtained in violation of [his] Sixth and Fourteenth Amendment rights under the United States Constitution" and therefore could not be relied upon to enhance his sentence under the United States Sentencing Guidelines. (Doc. 1, at 5 in Case No. 1:20-cv-184.) Petitioner's § 2255 motion is now ripe for the Court's review.
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He "must clear a significantly higher hurdle than would exist on direct appeal" and establish a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
Additionally, in ruling on a motion made pursuant to § 2255, the Court must determine whether an evidentiary hearing is necessary. "An evidentiary hearing is required unless the record conclusively shows that the petitioner is entitled to no relief." Martin v. United States, 889 F.3d 827, 832 (6th Cir. 2018) (quoting Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012)); see also 28 U.S.C. § 2255(b). "The burden for establishing entitlement to an evidentiary hearing is relatively light, and where there is a factual dispute, the habeas court musthold an evidentiary hearing to determine the truth of the petitioner's claims." Martin, 889 F.3d at 832 (citations and internal quotations omitted). While a petitioner's "mere assertion of innocence" does not entitle him to an evidentiary hearing, the district court cannot forego an evidentiary hearing unless "the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Id. When petitioner's factual narrative of the events is not contradicted by the record and not inherently incredible and the government offers nothing more than contrary representations, the petitioner is entitled to an evidentiary hearing. Id.
Title 28, United States Code, Section 2255(f) is a one-year statute of limitations on all petitions for collateral relief under § 2255 running from the latest of: (1) the date when the judgment of conviction becomes final; (2) the date when 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 governmental action; (3) the date when 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 when the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
In this case, Petitioner's motion to vacate, set aside, or correct his sentence is not timely. Petitioner did not appeal his conviction and sentence, so his judgment became final on April 23, 2018. See Fed. R. App. P. 4(b)(1)(A) (); Sanchez-Castellano v. UnitedStates, 358 F.3d 424, 427 (6th Cir. 2004) (). Even under the most liberal reading of Petitioner's filings, he did not seek relief under § 2255 until May 2020—more than two years after his judgment became final.2 Accordingly, his § 2255 motion is not timely under 28 U.S.C. § 2255(f)(1).3
Additionally, nothing in the record supports equitable tolling of the one-year statute of limitations applicable to Petitioner's § 2255 motion. While the one-year statute of limitations applicable to § 2255 motions is subject to equitable tolling, Solomon v. United States, 467 F.3d 928, 933, 935 (6th Cir. 2006), tolling is applied sparingly, Griffin v. Rogers, 399 F.3d 626, 635 (6th Cir. 2005). To be entitled to equitable tolling, a habeas petitioner must show: "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
In this case, Petitioner has not provided facts demonstrating that some extraordinary circumstance prevented his timely filing the present motion or that he has been diligently pursuing his rights. Petitioner asserts that he believed he had a direct appeal pending, but does not allege any facts suggesting that he diligently pursued his rights with respect to that appeal or with respect to his § 2255 motion after learning that his counsel did not file a notice of appeal. Petitioner's belief that an appeal was pending does not explain his inaction for two years after the Court entered its judgment. Accordingly, Petitioner is not entitled to equitable tolling, and his § 2255 motion will be dismissed as untimely.
Even if his § 2255 motion were timely, Petitioner has waived all his § 2255 arguments, except for his arguments regarding ineffective assistance of counsel. The Sixth Circuit "has consistently held that plea-agreement waivers of § 2255 rights are generally enforceable" and that "a defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement." Cox v. United States, 695 F. App'x 851, 853 (6th Cir. 2017) (internal citations and quotation marks omitted). "To be valid, a waiver simply must have been entered into knowing and voluntarily." Id. (citing Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001)).
In this case, Petitioner's plea agreement states that he "knowingly and voluntarily waives the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255 or to collaterally attack [his] conviction(s) and/or resulting...
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