United States v. Peterson

• Decision Date: 11 January 2013
• Docket Number: Criminal Action No. 07–135 (JDB).
• Citation: 916 F.Supp.2d 102
• Court: U.S. District Court — District of Columbia
• Parties: UNITED STATES of America v. Thomas E. PETERSON, Jr., Defendant.

916 F.Supp.2d 102

UNITED STATES of America

v.Thomas E. PETERSON, Jr., Defendant.

Criminal Action No. 07–135 (JDB).

United States District Court, District of Columbia.

Jan. 11, 2013.

Precious Murchison, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Plaintiff.

Tony W. Miles, Federal Public Defender for D.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Defendant Thomas E. Peterson, Jr. has moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Peterson seeks relief based on Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), arguing that he was erroneously sentenced as a career offender when, under Chambers, one of his predicate offenses—failure to report to a halfway house—did not actually qualify as a “crime of violence.” The Court concludes that Peterson's motion is both untimely and procedurally defaulted, and hence it will be denied.

BACKGROUND

On October 1, 2007, Peterson and the government entered into a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C).¹See Plea Agreement [ECF 30] 2. Peterson agreed to plead guilty to one count of unlawful possession with intentto distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and agreed that he was accountable for more than 50 but less than 150 grams of cocaine base. Plea Agreement 1. The offense carried a mandatory minimum of five years' imprisonment and a statutory maximum of forty years' imprisonment. See21 U.S.C. § 841(b)(1)(B). The parties agreed that ten years' imprisonment was the appropriate sentence. Plea Agreement 2.

Peterson entered a plea of guilty in this Court, at which time the Court deferred its decision on whether to accept or reject the Rule 11(c)(1)(C) plea agreement, including the ten-year sentence, until after it had received the Presentence Investigation Report (“PSR”) from the U.S. Probation Office. 10/1/07 Tr. of Plea Hr'g [ECF 44] 22–23. The PSR determined that Peterson was a career offender under U.S. Sentencing Guidelines Manual (“U.S.S.G”) § 4B1.1(a) based on “two prior felony convictions of either a crime of violence or a controlled substance offense,” the first for “escape” and the second for distribution of cocaine. SeeU.S.S.G. § 4B1.1(a); Gov't's Mem. in Opp'n to Def.'s Mot. [ECF 52] (“Gov't's Opp'n”), Ex. E (“PSR Excerpts”) 5 (referencing Superior Court docket numbers 1999F0757 and 2005F6412); see also id. at 8–9. Peterson's 1999 escape conviction was for failure to return to a halfway house. PSR Excerpts 9. The PSR calculated a total offense level of 31 and, because of Peterson's career offender status, a criminal history category of VI. Id. at 5, 11. As a result, Peterson's guidelines range was 188 to 235 months. Id. at 12.

On January 11, 2008, after reviewing the PSR, the Court accepted the Rule 11(c)(1)(C) plea agreement and the agreed-upon sentence and sentenced Peterson to a term of 120 months' imprisonment, to be followed by a 60–month term of supervised release. See 1/11/08 Tr. of Sent'g 18; Judgment [ECF 38] 2–3. Peterson did not appeal his conviction or sentence.

On January 13, 2009, the Supreme Court held in Chambers v. United States that failure to report for incarceration or periodic imprisonment did not qualify as a “violent felony” under the Armed Career Criminal Act (“ACCA”). See555 U.S. at 126, 130, 129 S.Ct. 687.² Over two years later, on February 10, 2011, Peterson signed the instant § 2255 motion. See Def.'s Mem. in Supp. of Mot. [ECF 43–1] (“Def.'s Mot.”) 15. As pro se filings must be construed liberally, see Richardson v. United States, 193 F.3d 545, 548 (D.C.Cir.1999), absent evidence to the contrary, the Court will assume that Peterson delivered his motion to prison authorities on the date he signed it and hence will consider the motion filed on February 10, 2011, see Houston v. Lack, 487 U.S. 266, 270–71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (discussing prisoner mailbox rule); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir.2001).

DISCUSSION

Peterson contends that this Court should vacate his sentence and remand the case for resentencing because under Chambers his escape conviction no longer qualifies as a conviction for a “crime of violence” on which career offender status may be based. SeeU.S.S.G. §§ 4B1.1(a), 4B1.2(a). The government “agrees with [Peterson] that his escape conviction, which is based on a failure to return on time to a halfway house, would no longer qualify as a ‘crime of violence’ pursuant to § 413 1.2, and therefore [Peterson] would not qualify as a ‘career offender.’ ” Gov't's Opp'n 5. But, the government argues, Peterson is not entitled to relief under § 2255 because his claim is (1) untimely, (2) procedurally defaulted, and (3) not cognizable. Id. at 5–6. The Court will address these arguments in turn.

I. Timeliness

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) sets a one-year limitation period for filing a motion under § 2255. See28 U.S.C. § 2255(f). The limitation period runs 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.

The government argues that Peterson's motion is time-barred because he filed it after the one-year limitation period expired. Because Peterson did not appeal, his judgment of conviction became final on January 28, 2008, the date on which the time for seeking direct review expired. SeeFed. R.App. P. 4(b)(1)(A)(i) (2008); United States v. Ingram, 908 F.Supp.2d 1, 3–4, 2012 WL 6086916, at *3 (D.D.C.2012); cf. Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (“[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction.”). Peterson filed his § 2255 motion (at the earliest) on February 10, 2011, more than three years after this date. Accordingly, if the one-year limitation period began to run on “the date on which the judgment of conviction [became] final,” Peterson's motion was untimely. See28 U.S.C. § 2255(f)(1).

The one-year limitation period may instead begin to run on “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.” See id. § 2255(f)(3). Assuming arguendo that Chambers recognized a new right that is retroactively applicable to cases on collateral review,³ the limitation period would have run from January 13, 2009, the date Chambers was decided. See Dodd v. United States, 545 U.S. 353, 357–58, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). But even if the one-year limitation period was not triggereduntil this later date, Peterson's motion—filed more than two years after Chambers was decided—was still untimely.

Recognizing that his claim is “(arguably) time-barred under the AEDPA,” Peterson argues that he is entitled to equitable tolling. See Def.'s Reply [ECF 53] 3; see also Def.'s Mot. 6–8. The D.C. Circuit recently held, for the first time, that equitable tolling applies to motions filed under § 2255. United States v. McDade, 699 F.3d 499, 504 (D.C.Cir.2012). A § 2255 movant is entitled to equitable tolling only if (1) “he has been pursuing his rights diligently” and (2) “some extraordinary circumstance stood in his way and prevented timely filing.” See Holland v. Florida, ––– U.S. ––––, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (internal quotation marks omitted), quoted in McDade, 699 F.3d at 504;accord United States v. Pollard, 416 F.3d 48, 56 (D.C.Cir.2005); United States v. Cicero, 214 F.3d 199, 203 (D.C.Cir.2000) (“Equitable tolling, which is to be employed only sparingly in any event, has been applied in the context of the AEDPA only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” (internal quotation marks and citation omitted)). A showing of extraordinary circumstances generally requires “more than just [a defendant's] status as pro se or his limited access to a law library.” See Jones, 689 F.3d at 627;see also McDade, 699 F.3d at 505;Cicero, 214 F.3d at 203 (“The prisoner's ignorance of the law or unfamiliarity with the legal process will not excuse his untimely filing, nor will a lack of representation during the applicable filing period.”).

Peterson has not shown that he has been pursuing his rights diligently, nor has he alleged any extraordinary circumstance that prevented him from timely filing his motion. See Holland, 130 S.Ct. at 2562. In fact, Peterson has offered no explanation for the more-than-two-year gap between the Supreme Court's decision in Chambers and the filing of his motion. Hence, the Court concludes that Peterson is not entitled to equitable tolling under the two-part test set forth in Holland. See McDade, 699 F.3d at 505 (finding diligent pursuit and extraordinary circumstances); Jones, 689 F.3d at 627–28 (same).

Rather than claim diligent pursuit and extraordinary circumstances, Peterson argues that equitable tolling is warranted because he is actually innocent of being a career offender under U.S.S.G. § 4B1.1. See Def.'s Reply 3. Some courts of appeals have held that AEDPA's one-year limitation period may be equitably tolled based on a...