Patton v. United States of America

Filing 8

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 6/14/2017. (JLC)

FILED
2017 Jun-14 AM 09:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
RICHARD PATTON, JR.,
Movant,
v.
UNITED STATES OR AMERICA,
Respondent.

)
)
)
)
) Case No.: 1:17-cv-08009-VEH
(7:11-cr-289-VEH-HGD)
)
)
)
)
)

MEMORANDUM OPINION
Now pending before the Court is the motion (“Petition”) filed by Richard
Patton, Jr. (“Petitioner” or “Patton”) seeking to vacate his sentence and to have
him released from federal custody. For the reasons stated below, the Petition is
DISMISSED as denied.
I. PROCEDURAL HISTORY AND BACKGROUND
A. The Petition
The Petition was filed on March 17, 2017.1 (Doc. 2). The Court has also
1

The document was signed by the movant on March 13, 2017, but it contains no
statement about when it was placed in the prison mail; therefore the “prison mailbox” rule does
not apply. In any event, applying the prison mailbox rule would have no impact on whether or
not movant’s motion was timely, as his judgment of conviction was imposed on January 19,
2012, he took no appeal, and therefore his judgment became final 14 days later, on February 2,
2012.

received and reviewed Patton’s other filings (Docs. 3, 5, 6, and 7). As originally
filed, the Petition was mischaracterized by Patton as brought under 22 U.S.C. §
2241. Accordingly, on April 3, 2017, the Court gave Patton a Castro notice,2
stating:
Specifically, the undersigned hereby notifies the movant
that this Court will construe his motion (doc. 2) as supplemented
by his notice (doc. 3) as a motion to vacate brought pursuant to 28
U.S.C. § 2255 unless, no later than May 1, 2017, the movant
withdraws all motions challenging his federal sentence. Any
amendment to or supplementation of the movant’s pleadings
(docs. 2 and 3) is also due no later than May 1, 2017. Finally,
movant alternatively shall have until May 1, 2017, to contest this
“recharacterization”. The movant is hereby expressly “warned”
that this recharacterization means that any subsequent § 2255
motion will be subject to the restrictions on ‘second or successive’
motions.
(Doc. 4 at 3).
On April 17, 2017, Patton replied to the Order by filing his Reply. (Doc. 6).
In that Reply, he stated “I recharacterize my 28 USCS [sic] I’m filing a 28 USCS
[sic] 2255 My supplement [sic] motion is included with this letter.” (Id. at 1).
B. The Underlying Criminal Conviction
On September 28, 2011, pursuant to a written plea agreement (Crim. Doc.

2

Order, doc. 4.

2

11)3, Patton plead guilty to one count of Bank Robbery, in violation of Title 18,
United States Code, Section 2113(a) and (d) (Count One); and to one count of
brandishing a firearm in furtherance of a crime of violence, in violation of Title
18, United States Code, Section 924(c) (Count Two). On January 19, 2012, this
Court sentenced Patton to the custody of the Bureau of Prisons for a term of 78
months as to Count One and a term of 84 months as to Count Two, with the term
imposed for Count Two to run consecutive to the term imposed for Count One.
(Crim. Doc. 19).
Patton did not appeal his conviction or sentence. Accordingly, his judgment
of conviction became final fourteen days later, on February 2, 2012. This is the
first motion/petition under 28 U.S.C. § 2255 filed by Patton as to his sentence for
the underlying criminal conviction.
II. STANDARD OF REVIEW
Following conviction and sentencing, 28 U.S.C. § 2255 allows a federal
prisoner to file a motion/petition in the sentencing court “to vacate, set aside or
correct the sentence” on the basis “that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the court was without
3

References to documents filed in the underlying criminal case (United States v. Patton,
7:11-cr-289-VEH-HGD, hereinafter the “underlying criminal case”) are identified as “Crim.
Doc.”.

3

jurisdiction to impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack[.]” 28
U.S.C. § 2255(a). To obtain relief under § 2255, a petitioner must: (1) file a
non-successive petition or obtain an order from the Eleventh Circuit authorizing a
district court to consider a successive § 2255 motion, 28 U.S.C. § 2255(h), § 2255
Rule 9; (2) file the motion in the court where the conviction or sentence was
received, see Partee v. Attorney Gen. of Ga., 451 F. App’x 856 (11th Cir. 2012);
(3) file the petition within the one-year statute of limitations, 28 U.S.C. § 2255(f);
(4) be “in custody” at the time of filing the petition, Spencer v. Kemna, 523 U.S. 1,
7 (1998); (5) state a viable claim for relief under the heightened pleading standards
of § 2255 Rule 2(b), see also McFarland v. Scott, 512 U.S. 849, 856 (1994); and
(6) swear or verify the petition pursuant to 28 U.S.C. § 1746. Finally, “[i]n
deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition’s factual
allegations, which, if true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007). However, “if the record refutes
the applicant’s factual allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.” Id.

4

III. ANALYSIS
The sole bases for Patton’s challenge are that this Court was not established
pursuant to Article III of the United States Constitution, the undersigned
accordingly is not an “Article III judge,” and therefore he is being held in custody
in violation of his Constitutional rights. Because Patton’s entire factual premise is
wrong, his argument fails.
A. Article III Courts
It appears that Patton thinks that only the United States Supreme Court and
the courts of the District of Columbia are Article III courts. He concludes that,
since this Court sits in the Northern District of Alabama (and is neither the United
States Supreme Court nor a court of the District of Columbia), it must be a
territorial or Article I court.
Patton’s arguments are based on Article III, Section 1 of the United States
Constitution, which provides: “The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish.” U.S. CONST. art. III, § 1. Patton disputes
that Congress has established the United States District Courts under that Article
and Section and, accordingly, disputes that the United States District Courts are
“Article III courts” and that judges (such as the undersigned) who are appointed
5

United States District Court judges are “Article III judges.” A little history of the
federal judiciary is in order.
Almost immediately after the ratification of the Constitution, Congress
passed the Judiciary Act of 1789.4 In that Act,
Congress proceeded to create not one set of inferior courts but two. It
established for each state at least one district court, and it also created
three circuit courts. It established judgeships for the Supreme Court
and for the district courts, but not for these circuit courts. Instead, the
circuit courts, which were to hold two sessions each year at each
district within the circuit, were comprised of two justices of the
Supreme Court and the district judge for the district.
The district courts were entirely courts of original, or trial,
jurisdiction. The Act authorized these courts to entertain admiralty
cases, minor criminal cases, and some other rather limited classes of
cases.
(13 FED. PRAC. & PROC. JURIS. § 3503 (3d ed.)(footnote omitted)).
Congress enacted various laws since 1789 that made changes to the
organization and jurisdiction of the federal courts. Relevant to Patton’s challenge
to this Court’s jurisdiction, Congress,
in 1875 finally gave the lower federal courts original jurisdiction, in
terms nearly identical to the constitutional grant, to cases arising
under the Constitution, laws, or treaties of the United States.[FN9]
Thus for the first time Congress conferred general federal question
jurisdiction, although in prior years particular statutes had authorized
jurisdiction in specific classes of federal question cases.

4

Act of Sept. 24, 1789, 1 Stat. 73.

6

(FN9. Act of March 3, 1875, 18 Stat. 470).
(Id. § 3504).
In 1891, Congress radically reshaped the federal judiciary by adopting the
Evarts Act. Act of March 3, 1891, 26 Stat. 826.
This statute created for each circuit a circuit court of appeals, and
authorized the appointment of an additional circuit judge for each
circuit. The new circuit court of appeals was to consist of three
judges, the two circuit judges and either a justice of the Supreme
Court or one of the district judges from within the circuit. ***
The Evarts Act retained both the district courts and the circuit courts
as courts of original jurisdiction, but abolished the appellate
jurisdiction of the circuit courts. Thus there were still two trial courts,
with varying jurisdiction, but appeal from each was either to the new
circuit court of appeals or to the Supreme Court.
(Id.)(footnote omitted).
The Judicial Code of 1911 [FN13] finally abolished the circuit courts.
A source of complaint and controversy from their establishment in
1789, they had been quite unnecessary since the adoption of the
Evarts Act in 1891. In 1911 their original jurisdiction was transferred
to the district courts.
(FN13)(Act of March 3, 1911, 36 Stat. 1087).
(Id.).
As a result of these Acts of Congress pursuant to Article III, the United
States District Courts of the United States of America have had plenary
jurisdiction over federal criminal cases since 1911. This Court is one of those
7

United States District Courts and the undersigned is a judge of this Court.
B. Statute of Limitations Applicable to Proceedings Under § 2255
The Anti–Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
was enacted on April 24, 1996, and, pertinent to this case, added a new
subdivision to 28 U.S.C. 2255 providing for a one-year period of limitations
within which federal prisoners must file their motions to vacate pursuant to 28
U.S.C. § 2255. Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000), cert.
denied, 531 U.S. 971, 121 S.Ct. 410, 148 L.Ed.2d 316 (2000).
A 1–year period of limitation shall apply to a motion under this
section. The 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 the 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).
Patton makes no argument, and presents no facts, in favor of the Court’s

8

application of subsections (2), (3), or (4) of 2255(f). Thus, the timeliness of his
Petition is calculated under 2255(f)(1); that is, it is based upon the date on which
Patton's judgment of conviction became final. In this case, the Judgment of
Conviction was entered on January 19, 2012. It became final 14 days later, on
February 2, 2012, when his time to appeal expired without any direct appeal having
been filed. FED. R. APP. P. 4(b). He therefore had until February 4, 2013,5 to file the
Petition.6 It is untimely by more than four years.
Further, Patton has not alleged any facts that would show he is entitled to
have the statute of limitations tolled. Rather, he relies on his argument that this
Court is not an Article III court, therefore 28 U.S.C. § 2255 does not apply to him
because he is not “under sentence of a court established by Act of Congress.” (Doc.
6 at 2). Having rejected Patton’s argument that this is not an Article III court, this
Court accordingly finds that the Petition is due to be DISMISSED as untimely.
IV. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing 2255 Proceedings, the court
5

One year from the date of Johnson occurred on February 2, 2013. However, because
February 2, 2013, fell on a Saturday, the deadline for Petitioner’s motion was extended to
February 4, 2013. See FED. R. CIV. P. 6(a)(1)(C); FED. R. CRIM. P. 45(a)(1)(C).
6

The one-year period is calculated using the “anniversary method, under which the
limitations period expires on the anniversary of the date it began to run.” Downs v.
McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (internal quotation marks omitted).

9

finds that a certificate of appealability in this case is not well-founded, and any
application for one is due to be denied. 28 U.S.C. foll. 2255, Rule 11(a) (“The
district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.”). The habeas corpus statute makes clear that an
applicant is entitled to appeal a district court's denial of his habeas corpus petition
only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C.
2253(c)(1). A certificate of appealability may issue only where “the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
2253(c)(2). Where, as here, a habeas petition is being denied in its entirety on
procedural grounds without reaching the merits of an underlying constitutional
claim, “a COA should issue [only] when the prisoner shows ... that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484, 120 S .Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Given the applicability
of the one-year limitations period in this case, a reasonable jurist could not
conclude that this Court is in error for dismissing Patton’s motion to vacate, nor
could a reasonable jurist conclude that Patton should be allowed to proceed further
with respect to his claims. Id., 529 U.S. at 484, 120 S.Ct. at 1604 (“Where a plain
10

procedural bar is present and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the Patton should be allowed to proceed further.”).
Accordingly, Patton is not entitled to a certificate of appealability.
V. CONCLUSION
Having determined that this Court is a court established by Congress
pursuant to Article III of the United States Constitution, the Court finds that:
1.

Patton is in federal custody.

2.

He seeks release from custody and accordingly his remedy, if any, is
determined under 28 U.S.C. § 2255.

3.

His Petition is time-barred and due to be dismissed.

4.

Patton is not entitled to a Certificate of Appealability.

An appropriate Order will be entered.
DONE this the 14th day of June, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

11