White v. USA-2255

Filing 2

MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 12/2/2014. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DARRYL WHITE,

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Petitioner

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v

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UNITED STATES OF AMERICA,

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Respondent

Civil Action No. CCB-14-356
(Related Crim. Case: CCB-09-369)

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MEMORANDUM

Pending is petitioner Darryl White’s motion to vacate filed pursuant to 28 U.S.C. § 2255,
(ECF No. 108), and the government’s limited response maintaining that the motion is untimely,
(ECF No. 112). Mr. White was advised that the motion to vacate would be dismissed as
untimely unless he provided information establishing his entitlement to an exception provided in
28 U.S.C. § 2255 or to equitable tolling of the statute of limitations. (ECF No. 113.) Mr. White
has not responded.
On February 22, 2010, Mr. White pled guilty to conspiracy to distribute and possess with
intent to distribute 100 grams or more of heroin. He was sentenced on July 16, 2010 to a 188month term of imprisonment and a four-year term of supervised release. The court issued the
judgment and commitment order on July 19, 2010. (ECF No. 95.) Mr. White did not appeal.
On February 5, 2014, more than three years after the judgment and commitment order were
entered in this case, Mr. White filed the instant motion to vacate. (ECF No. 108.)
To be entitled to equitable tolling, Mr. White must establish that either some wrongful
conduct by respondent contributed to his delay in filing his motion to vacate, or that
circumstances beyond his control caused the delay. See Harris v. Hutchinson, 209 F.3d 325, 330
(4th Cir. 2000). “[A]ny resort to equity must be reserved for those rare instances where . . . it

would be unconscionable to enforce the limitation period against the party and gross injustice
would result.” Id. Mr. White has failed to establish factors warranting equitable tolling of the
statute of limitations.
To the extent Mr. White asserts he is entitled to relief pursuant to Alleyne v. United
States, 133 S.Ct. 2151 (2013), and therefore the one-year statute of limitations began to run
pursuant to 28 U.S.C. § 2255(f)(3) when Alleyne was decided, he is mistaken. Alleyne cannot be
applied retroactively to cases on collateral review because the Supreme Court has not declared
that it may be applied retroactively. See, e.g., United States v. Winkelman, 746 F.3d 134, 135-36
(3d Cir. 2014).
Having concluded that the motion to vacate was filed beyond the statute of limitations,
the court will dismiss the motion as untimely in a separate Order which follows. When dismissal
of a motion to vacate is based solely on procedural grounds, a certificate of appealability will not
issue unless the petitioner can “demonstrate both (1) ‘that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right’ and (2)
‘that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.’” Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)). Mr. White has not demonstrated either requirement, and the court
will not issue a certificate of appealability.

December 2, 2014
Date

/s/
Catherine C. Blake
United States District Judge

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