Frazier v. United States

• Decision Date: 08 March 2016
• Docket Number: No. 1:09-CR-188-CLC-SKL-1,No. 1:14-CV-134-CLC,1:14-CV-134-CLC,1:09-CR-188-CLC-SKL-1
• Parties: DAVID T. FRAZIER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

DAVID T. FRAZIER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 1:14-CV-134-CLC

No. 1:09-CR-188-CLC-SKL-1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA

March 8, 2016

MEMORANDUM OPINION

Before the Court is Petitioner's amended pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 80, 84]. Petitioner filed his original petition on April 24, 2014 [Doc. 80], the Government responded in opposition on July 24, 2014 [Doc. 86], and Petitioner replied on August 7, 2014 [Doc. 88]. During pendency of the petition, Petitioner filed four motions for leave to amend [Docs. 84, 87, 102, 111], two supplements to his original reply [Docs. 90, 95], one motion for appointment of counsel [Doc. 99], four motions to expedite ruling on his § 2255 motion [Docs. 89, 92, 98, 102], and a request for a copy of his docket sheet free of cost [Doc. 91]. On September 20, 2015, the Court granted Petitioner's first motion to amend [Doc. 84] and directed the Government to respond to the arguments raised in Defendant's remaining filings [Doc. 104]. Pursuant to that order, the Government filed an amended response on December 14, 2015 [Doc. 109], to which Petitioner replied on January 11, 2016 [Doc. 114].

For the reasons stated below, Petitioner's July 31, 2014 request to amend [Doc. 87] will be GRANTED and latter two requests to amend [Docs. 102, 111] will be DENIED as untimely. The requests to supplement Petitioner's reply [Doc. 90, 95] will be GRANTED and his petition as amended [Docs. 80, 84, 87] will be DISMISSED WITH PREJUDICE. The remaining non-dispositive motions [Docs. 89, 91, 92, 98, 99, 102] will be DENIED as moot.

I. BACKGROUND

In 2010, Petitioner pleaded guilty to conspiring to manufacture, distribute, and possess with intent to distribute at least 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) [Doc. 46 ¶¶ 1, 4]. Under 21 U.S.C. § 841(b)(1)(A)(viii), Petitioner faced a sentence of between ten years' and life imprisonment. The Court ultimately deemed Petitioner to be a career offender under §4B1.1 of the United States Sentencing Guidelines ("USSG" or the "Guidelines"), based on his two prior Tennessee convictions for felony evading arrest. As a result, Petitioner was subject to an enhanced guidelines range of 262 to 327 months' incarceration [See PSR ¶¶ 27, 36, 38, 66]. The Court sentenced Petitioner to a within-Guidelines term of 294 months' imprisonment [Doc. 60]. On appeal, the Sixth Circuit affirmed Petitioner's conviction and sentence on February 19, 2013, rejecting an untimely request for rehearing en banc [Doc. 76]. Petitioner did not seek a writ of certiorari from the Supreme Court.

On July 21, 2014, the Polk County Criminal Court—the venue responsible for the two evading-arrest convictions used to classify Petitioner a career offender—permitted Petitioner to withdraw his guilty plea to the evading arrest offenses after the Tennessee Court of Criminal Appeals held that the associated sentence violated Tenn. Code Ann. § 40-20-111(b), because it consisted of two concurrent one-year terms rather than two consecutive one-year terms [See Doc. 87 at 5; id. at 10, 12]. Upon being permitted to withdraw his original plea, Petitioner immediately entered a new plea and received a revised, lawful sentence [id. at 5-7].

On April 24, 2015, Petitioner filed the current § 2255 petition seeking to vacate his federal conviction and sentence [Doc. 80]. Since that time, he has also filed four motions for leave to amend [Docs. 84, 87, 102, 111].

II. TIMELINESS OF PETITIONER'S CLAIMS

Relevantly here, 28 U.S.C. § 2255(f)(1) provides that the one-year statute of limitations applicable to collateral challenges runs from "the date on which the judgment of conviction becomes final." This same limitations period governs the timeliness of later-filed amendments. Cameron v. United States, No. 1:05-CV-264, 2012 U.S. Dist. LEXIS 48381, at *3-6 (E.D. Tenn. April 5, 2012) (citing Olsen v. United States, 27 F. App'x 566 (6th Cir. Dec. 14, 2001)). The fact that the Sixth Circuit refused Petitioner's request for rehearing as untimely, combined with Petitioner's failure to seek a writ of certiorari with the Supreme Court, compel the conclusion that his conviction became "final" for purposes of subsection (f)(1) on May 30, 2013—90 days after affirmation of his conviction and sentence on direct appeal. See Clay v. United States, 537 U.S. 522, 525 (2003) (explaining that a conviction affirmed on appeal becomes final when the 90-day period for seeking a writ of certiorari expires); U.S. Sup. Ct. R. 13(3) (explaining that the time to file a writ for certiorari runs from the date of denial of hearing en banc only "if [the] petition for rehearing is timely[,] . . . the [Court] appropriately entertains an untimely petition for rehearing[,] . . . or [the Court] sua sponte considers rehearing). As such, Petitioner's window for making a timely request for collateral relief expired on May 20, 2014.

A. Timeliness of Pending Motions for Leave to Amend

While Petitioner's original § 2255 petition was filed before the statute of limitations expired on May 20, 2014 [Doc. 80], the motions for leave to amend—filed June 6, 2014 [Doc. 84], July 31, 2014 [Doc. 87], August 31, 2015 [Doc. 102], and December 29, 2015 [Doc. 111]—were untimely. Thus, the Court may only consider them if the limitations period was tolled, if the claims contained therein relate back to timely filed claims under Federal Rule of Civil Procedure 15(b), or if one of the alternative limitations periods found in §§ 2255(f)(2), (3), or (4) applies.¹

1. Timeliness of July 31, 2014 Amendment

Section 2255(f)'s statute of limitations is not jurisdictional and thus may be tolled under limited, extraordinary circumstances. Dunlap v. United States, 250 F.3d 101, 1007 (6th Cir. 2001). A petitioner bears the burden of establishing that equitable tolling applies to his case, see Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004), and 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," Holland v. Florida, 130 S. Ct. 2549, 2562 (2010); Hail v. Warden, 662 F.3d 745, 750 (6th Cir. 2011); see also Jurado, 337 F.3d at 643 ("Absent compelling equitable considerations, a court should not extend limitations by even a single day."). Petitioner's first pending motion to amend [Docs. 87] fails to identify an extraordinary circumstance justifying non-compliance with § 2255(f)(1). Compare Stovall v. United States, No. 1:12-cv-377, 2013 U.S. Dist. LEXIS 12937, at *9 (E.D.T.N. Jan. 31, 2013) (rejecting request for equitable tolling where the petitioner failed to set forth any facts which suggested he had diligently pursued his rights), with Jones v. United States, 689 F.3d 621, 627 (6th Cir. 2012) (granting request for equitable tolling where the petitioner pled facts indicating he had been separated from his legal materials for extended period of time due tomultiple detention transfers and an illness). As such, the Court finds the motion is not subject to equitable tolling.

Even though there are no grounds for equitable tolling, if the proposed claims "relate back" to a timely, original pleading and are thus saved from being time-barred, the Court will still consider them. Mayle v. Felix, 545 U.S. 644, 656-57 (2005), overruled on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63 (2007). An amended claim relates back if it "ar[i]se[s] out of the [same] conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed. R. Civ. P. 15(c)(2). The Supreme Court has rejected a broad reading of "conduct, transaction, or occurrence" in the context of post-conviction relief and explained an amended petition will not relate back "when it asserts a new ground for relief supported by facts that differ in both time and type from those [set forth in] the original pleading." Felix, 545 U.S. at 650. In other words, "relation back depends on the existence of a common 'core of operative facts' uniting the original and newly asserted claims." Id. at 658 (citations omitted).

The claim asserted in Petitioner's July 31, 2014 amendment—challenging a career-offender enhancement based on later vacated state-court convictions—closely relates to one of the grounds raised in Petitioner's original § 2255 motion [Compare Doc. 80 pp. 7, 20 (suggesting the now-vacated state-court convictions can no longer be used to categorize him as a career offender) with Doc. 87 pp. 1-3 (arguing his constitutional rights are violated by imposition of a career-offender enhancement based upon subsequently vacated state-court convictions)]. This demonstrates that the proposed amendment shares a core of operative fact with, and thereby relates back to, Petitioner's original, timely filed petition. As such, the motion for leave to amend [Doc. 87] will be GRANTED.

2. Timeliness of August 31, 2015 and December 29, 2015 Amendments

In contrast to the July 31, 2014 motion, Petitioner's August 31, 2015 and December 29, 2015 proposed amendments set forth a novel basis for collateral relief—arguing that the Supreme Court's invalidation of the Armed Career Criminal Act's (the "ACCA") residual clause in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), should be extended to nullify the identical residual clause found in Section 4B1.2(a) of the Guidelines [Docs. 102 pp. 1-2; 111 pp. 1-2].²

For these amendments, Petitioner appears to rely on § 2255(f)(3), which provides an alternative starting point for the limitations period: "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by theSupreme Court and made retroactive applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). As such, the...