Sharp v. United States

• Docket Number: 1:13CR384-1,1:20CV453
• Decision Date: 02 August 2023
• Parties: DERWAYNE WESLEY SHARP, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of North Carolina

1

DERWAYNE WESLEY SHARP, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 1:13CR384-1, 1:20CV453

United States District Court, M.D. North Carolina

August 2, 2023

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L Patrick Auld, United States Magistrate Judge

On June 18, 2014, this Court (per then-Chief United States District Judge William L. Osteen, Jr.) entered a Judgment against Petitioner imposing, inter alia, a prison term of 246 months as a result of his guilty plea to Count One of his Indictment, which charged him with enticing and coercing a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a) and (e). (Docket Entry 23 at 1-2; see also Docket Entry 1 (Indictment) Docket Entry 11 (Amended Factual Basis); Docket Entry 14 (Plea Agreement); Docket Entry 39-1 (Plea Hrg. Tr.).)^[1]Petitioner did not appeal. (See Docket Entry 26 at 1.)^[2]

On May 21, 2020, the Clerk docketed Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”) (see id. at 1 (bearing date-stamp)), which he “declare[d] . . . under penalty of perjury . . . [he] placed in the prison mailing system on May 16, 2020” (id. at 12; see also Docket Entry 27 at 1 (listing “Mailed” date of “May 16, 2020” for “Supporting Memoranda”)). The Section 2255 Motion presents one ground for relief: “Factual Innocence.” (Docket Entry 26 at 4; see also id. (“[Petitioner] did not entice the minor to perform any activity for the purpose of recording the activity. And [Petitioner] could not be charged with possession of child pornography or enticement of a minor as mentioned because both statutes is [sic] unconstitutional. See supporting memoranda.”).)

The United States has responded “that [the Section] 2255 M]otion is time-barred and should be dismissed.” (Docket Entry 39 (“Dismissal Motion”) at 2; see also id. at 19 (certifying service of Dismissal Motion on Petitioner by mail on September 15, 2020).) The Clerk (via letter dated September 16, 2020) notified Petitioner of his “right to file a 20-page response in opposition to the [Dismissal M]otion” (Docket Entry 40 at 1) and warned him that:

[F]ailure to respond or, if appropriate, to file counter affidavits or evidence in rebuttal within the time allowed may cause the [C]ourt to conclude that the [Dismissal Motion's] contentions are undisputed. As a result, the [C]ourt may dismiss your suit or render judgment against you. Therefore, unless you file a response in opposition to the [Dismissal M]otion, it is likely your case will be dismissed .... Any response or counter-affidavits or other responsive material to [the Dismissal] Motion . . . must be filed within 21 days from the date of service of the [Dismissal M]otion upon you.

(Id. (bold font omitted).) Despite that warning, Petitioner did not respond to the Dismissal Motion. (See Docket Entries dated September 15, 2020, to present.)

“A 1-year period of limitation shall apply to a motion under [ S]ection [2255].” 28 U.S.C. § 2255(f). Furthermore:

[t]he limitation period shall run from the latest of--

(1) the date on which the judgment of conviction becomes final;

(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 governmental action;

(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.

Id.

Under Paragraph (1) of Subsection 2255(f), Petitioner's one-year period for seeking relief via Section 2255 began at the end of the day on July 2, 2014, “upon the expiration of the fourteen-day period for filing a direct appeal [after entry of the Judgment],” United States v. Diallo, 581 Fed.Appx. 226, 227 (4th Cir. 2014) (citing Clay v. United States, 537 U.S. 522, 525 (2003), and Fed. R. App. P. 4(b)(1)(A)(i), (b)(6)); see also United States v. Oliver, 878 F.3d 120, 125 (4th Cir. 2017) (“A criminal conviction becomes final at the end of the appellate process - i.e., when the time for a direct appeal expires and the defendant has not noticed an appeal or, if the defendant pursues an appeal, when the time for filing a petition for certiorari expires.”). That one-year period thereafter expired at the end of the day on July 2, 2015, nearly five years before (as documented above) Petitioner submitted the Section 2255 Motion for mailing (on May 16, 2020). See, e.g., United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (holding that, pursuant to Paragraph (1) of Subsection 2255(f), “[t]he first day of the 1-year limitation period is the day after [a conviction became final], giving defendants until . . . the anniversary date of the [conviction becoming final] to file their habeas motion”), cited with approval in Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000).

“Because Petitioner filed [the Section 2255] Motion after the statute of limitations [under Paragraph (1) of Subsection 2255(f)] had run, the Court [should] find[] that his [Section 2255 M]otion is untimely unless Petitioner [has] satisf[ied] his burden of demonstrating that either another provision of § 2255(f) or equitable tolling should be applied to his case.” Gaddy v. United States, Nos. 3:08CR50, 3:11CV49, 2011 WL 7021140, at *4 (N.D. W.Va. Dec. 15, 2011) (unpublished) (emphasis added), recommendation adopted, 2012 WL 112638 (N.D. W.Va. Jan. 12, 2012) (unpublished), appeal dismissed, 473 Fed.Appx. 281 (4th Cir. 2012); see also Holland v. Florida, 560 U.S. 631, 649 (2010) (holding, in habeas context, that equitable tolling requires proof of two preconditions: “(1) that [the petitioner] has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing” (internal quotation marks omitted)). The Section 2255 Motion does not contend that Paragraphs (2)-(4) of Subsection 2255(f) apply; rather, in the portion of the Section 2255 form entitled “Timeliness of Motion” (Docket Entry 26 at 10 (all-caps font omitted)), which instructs petitioners that, “[i]f [their] judgment of conviction became final over one year ago, [they] must explain why the one-year statute of limitations as contained in [Section] 2255 does not bar [their] motion” (id.; see also id. at 11 n.* (setting out Section 2255(f)'s full text)), Petitioner wrote: “Innocence exception to statute of limitations, equitable tolling applies due to mental defects, illiteracy, and other factors.” (Id. at 10; see also id. (crossing out words “or is timely under 28 USC 2255(f)(4)”).) Petitioner's Supporting Memoranda likewise purports to “establish[] equitable tolling” (Docket Entry 27 at 1), on the grounds that “[Petitioner] is illiterate[ and] has dyslexia, [as well as] learning and other mental defects” (id. (citing Docket Entry 16)) or, “[a]lterntively, because [his] claim is first and foremost a claim of factual innocence” (id. at 2; see also id. (referring to “innocence exception to . . . 1 year statute of limitations”)).

The document cited as support for Petitioner's allegations of illiteracy and mental impairments consists of an evaluation prepared by a psychologist in advance of sentencing (see Docket Entry 16 (the “Evaluation”) at 1-2), which recounts Petitioner's self-report that “he completed the seventh grade” (id. at 3), “attended a school ‘for people who couldn't handle real school'” (id.) “repeated first and second grades due to academic problems” (id.), “was placed in special education classes throughout his education” (id.; see also Docket Entry 20, ¶ 55 (documenting school records showing that, at age eight, “[Petitioner] was enrolled in the Exceptional Children's program”)), “has ‘a form of dyslexia' as well as attention problems” (Docket Entry 16 at 3), “was prescribed Ritalin throughout his education” (id.; see also Docket Entry 20, ¶ 55 (documenting school records showing that, at age nine, “[Petitioner] was placed on Ritalin” and that, “[a]ccording to school administrators, . . . LD (learning disability) would be the most appropriate placement for him'” (italics omitted))), “can currently read a little but cannot write” (Docket Entry 16 at 3), “left school because he could not keep up with other students” (id.), “attempted to earn his GED but could not concentrate enough” (id.), held various jobs from 1995 to 2005 from which “he was never fired” (id.), subsequently suffered from “medical problems [which] ha[d] prevented him from working much” (id.), “does not know how to talk to people because he is ‘slow' and [] believes other people are smarter than he is” (id. at 4), “does not try to socialize and make friends out of fear that people would think he is ‘slow or crazy'” (id.), “sustain[ed] multiple head injuries with loss of consciousness, starting at age 14 or 15” (id. at 5), “has not received inpatient psychiatric treatment” (id.), “has not received psychotherapy or counseling” (id.), “has not been prescribed psychiatric medication” (id.), “considered seeking psychotherapy for depression or his pornography use but could not afford it” (id.), “experienced depressed mood and anhedonia that lasted for one week but not for two weeks” (id. at 9), as well as “periods of low motivation, such as not wanting to get out of bed” (id.), “never attempted to kill himself” (id.), but “acknowledged . . . thinking about suicide” (id.), experienced “periods of decreased...