Burnett v. USA - 2255
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 5/9/2017. (c/m 05/09/2017 jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WESLEY MITCHELL BURNETT, #57600-037:
UNITED STATES OF AMERICA
Civil Action No. DKC-16-2808
Criminal No. DKC-14-0211-002
On July 29, 2016,1 Wesley Burnett signed and deposited for mailing a paper titled
“Motion to Extend and Enlarge the Time for Defendant to File Appeal Brief” (ECF No. 142). In
his motion, received here on August 4, 2016, he indicated that he wished to challenge his
conviction and sentence but was about to be transferred from FCI-Seagoville, Texas to another
institution. Id. Although Burnett stated he would be seeking “coram nobis” relief, he had not
completed his 42-month sentence imposed by this court on June 16, 2015. Thus, it appeared he
sought to additional time to file a motion to vacate pursuant to 28 U.S.C. § 2255. No grounds for
relief were found within the motion. Nonetheless, the court, on September 6, 2016, construed his
motion as a motion to vacate, set aside, or correct sentence filed pursuant to 28 U.S.C. § 2255
and granted him 21 days to supplement his motion using the appropriate forms (which the Clerk
provided). (ECF No. 143).
On September 23, 2016, Burnett requested additional time to prepare a supporting
memorandum to accompany his motion to vacate. (ECF No. 144). Again, no grounds for relief
were identified in the extension request. On September 28, 2016, the court granted the request,
ordering Burnett to file his supplement on or before December 28, 2016. (ECF No. 145).
The original filing contains typewritten dates of July 18 and 19, with handwritten corrections to July 28 and
Burnett did not use the court-provided forms to file his supplement; rather, on January 3,
2017, the Clerk received a legal memorandum, postmarked December 29, 2016, setting forth his
arguments that his conviction be set aside because it is “void for vagueness.” (ECF No. 146).
Under the “prison mailbox rule,” the paper is deemed filed on the day it is handed to prison
authorities for mailing. See Houston v. Lack, 487 U.S. 266, 270-76 (1988); United States v.
Dorsey, 988 F. Supp. 917, 919-20 (D. Md. 1998) (holding that a petition shall be deemed to have
been filed on the date it was deposited with prison authorities for mailing under the prison
mailbox rule); see also United States v. McNeill, 523 F.App’x 979, 982-83 (4th Cir. 2013).
Arguably, Burnett turned his memorandum over to prison officials the day before its posting, on
December 28, 2016,2 and thus complied with the court-imposed deadline.
On January 19, 2017, the Government was ordered to respond solely as to the timeliness
of Burnett’s motion to vacate as supplemented with his memorandum. ECF No. 148. That
response is now before the court. ECF No. 149. Although notified that he may reply to the
Government’s response within 21 days (ECF No. 148 at p. 3, ¶ 2), Burnett has chosen not to
In his motion and supplemental memorandum, Burnett asserts that he is entitled to
vacatur because the statutory basis for his conviction is “void for vagueness.” ECF 146 at p. 1.
Burnett supports his claim for relief on the line of recent cases that addressed the
constitutionality of the “residual clause,” specifically citing Johnson v. United States, 135 S.Ct.
The motion contains a certificate of service dated August 15, 2016. Neither the Clerk nor the Office of the
United States Attorney received the filing on or around that date. The accuracy of the certificate of service is called
into question by the fact that Burnett wrote the court, in a letter received on September 2, 2016, indicating that he
needed a 90-day extension in order to file his motion to vacate. Thus, the court declines to accept August 15, 2016
as the date the motion to vacate was signed.
2551 (2015), as well as Mathis v. United States, 136 S. Ct. 2243 (2016), and Beckles v. United
States, No. 15-8544 (U.S. S.Ct. March 14, 2016), id. at p. 4, and provides a narrative explaining
why he thinks these decisions entitle him to the relief he requests, i.e., vacatur due to
“‘vagueness’ associated with the enhancements set forth by the sentencing court.” Id.
Before the merits raised in Burnett’s memorandum can be considered, the court must
determine whether the motion is timely. Under the provisions of 28 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
28 U.S.C. § 2255(f).
Judgment was entered against Burnett on Wednesday, June 17, 2015. The time for filing
an appeal expired 14 days later, on Wednesday, July 1, 2015. See Fed. R. App. P. 4(b)(1)(A)(i)
(2009) (criminal defendant’s notice of appeal must be filed in the district court within 14 days
after entry of judgment). To have been timely filed, Burnett’s motion to vacate should have
been filed on or before July 1, 2016, or one year from the date his conviction became final. The
cover letter appended to Burnett’s initial request for additional time to seek such relief, dated
July 29, 2016, was received by the Clerk on August 4, 2016, more than 12 months after the
filing deadline expired. Thus, the request itself – which contains no proposed grounds for relief
-- is untimely. ECF No. 142. Moreover, analysis of Burnett’s petition under 28 U.S.C.
§ 2255(f)(3), with the operative date being the date of the Supreme Court’s decision in Johnson,
also establishes that it is untimely as Johnson was decided on June 26, 2015, and the motion and
supplemental memorandum citing Johnson was filed approximately six months after the oneyear filing deadline for a Johnson claim expired.
None of the other circumstances for extending the running of the one-year clock are
alleged to apply here. Burnett’s motion and supplemental memorandum, to the extent they
can be understood, appear to argue about facts related to the criminal conduct charged in his
case and case law unrelated to the charge on which he was found guilty. Burnett does not
make any credible claims about any “impediment to making a motion created by
governmental action” or any new right recognized by the Supreme Court and made
retroactively applicable to his case and does not argue that he has discovered new facts that
support his claims since the time of his guilty plea.
Burnett’s claim is also not saved by equitable tolling. As the Fourth Circuit described
in Whiteside, “[e]quitable tolling of petitions for collateral review is available only when a
defendant demonstrates (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing. Whiteside, 775
F.3d 180 at 184, citing Holland v. Florida, 560 U.S. 631, 649, (2010) (internal quotation
Further, “[u]nder [the Fourth Circuit’s] precedent, equitable tolling is
appropriate in those “rare instances where—due to circumstances external to the party’s own
conduct—it would be unconscionable to enforce the limitation period against the party and
gross injustice would result.” Id., citing Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en
banc); see also United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Burnett makes no
credible claim in that he has been “pursuing his rights diligently and that some extraordinary
circumstance stood in his way and prevented timely filing.” Nor does enforcing the twice
extended deadline result in any injustice.
When a district court dismisses a habeas petition 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.’” Rouse v. Lee, 252 F.3d 676, 684 (4th Cir. 2001)
(quoting Slack v. Daniel, 529 U.S. 473, 484 (2000)). Burnett fails to satisfy this standard.
Accordingly, Burnett’s motion, construed as a motion to vacate, set aside, or correct
sentence filed pursuant to 28 U.S.C. § 2255 and supplemental memorandum (ECF Nos. 142,
146) will be denied and the Clerk will be ordered to close Burnett v. United States, Civil Action
No. DKC-16-2808 (D. Md.). A Certificate of Appealability will not issue.
May 9, 2017
DEBORAH K. CHASANOW
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?