Riley v. United States of America
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 1:16-CV-538
HON. ROBERT J. JONKER
UNITED STATES OF AMERICA,
Before the Court is Movant Effrem Riley’s motion to vacate, set aside or correct sentence
under 28 U.S.C. § 2255. (ECF No. 1.) The Government has filed a response (ECF No. 4) and
Movant has filed a motion to amend his motion under § 2255 (ECF No. 5), which the Court
construes as a motion to supplement. For the reasons that follow, both motions will be denied.
In 2009, Movant pleaded guilty to possession with intent to distribute more than five grams
of cocaine base, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A). (Plea Agreement, United States
v. Riley, No. 1:08-cr-337 (W.D. Mich.), ECF No. 15.) The Court sentenced him to a term of 240
months in prison followed by 10 years of supervised release. Movant’s range of sentence under the
Sentencing Guidelines (262 to 327 months) was enhanced by the career-offender provision in
§ 4B1.1 of the Guidelines because he had two prior convictions for a controlled substance offense.
However, the Court granted Movant’s motion for a downward variance and issued a sentence below
this range. Movant appealed his sentence, and the Court’s judgment was affirmed by the Court of
Appeals on March 3, 2011.
In his initial motion under § 2255, Movant asserts the following grounds for relief:
(1) ineffective assistance of counsel at the plea stage; (2) the Court improperly determined that he
is a repeat offender under 21 U.S.C. § 851 and a career offender under the Sentencing Guidelines
for the same prior conviction; (3) he is entitled to the benefit of Amendment 782 to the Sentencing
Guidelines; and (4) his sentence is unconstitutional because the Sentencing Guidelines treated one
gram of cocaine base as equivalent to 100 grams of cocaine.
In his motion to supplement, Movant claims that he does not qualify as a career offender
under the Guidelines because at least one of his two prior convictions does not qualify as a controlled
substance offense, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), and Mathis v. United
States, 126 S. Ct. 2243 (2016).
Respondent asserts that Movant’s claims are barred by the statute of limitations. The Court
agrees. The applicable 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 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).
In this case, as in most cases, the one-year statute of limitations ran from the date on which
the judgment of conviction became final. Where, as here, a defendant pursues a direct appeal but
does not petition the United States Supreme Court for a writ of certiorari, the judgment becomes
final when the time expires for filing a petition for a writ of certiorari. Clay v. United States, 537
U.S. 522, 532 (2003). Such a petition is timely when it is filed within 90 days after entry of the
appellate court’s judgment. Sup. Ct. R. 13(3). In this case, the Court of Appeals’ decision issued on
March 3, 2011. Consequently, the statute of limitations started to run 90 days from that date, on
June 1, 2011. Movant had one year from June 1, 2011 to file his motion. He filed on May 17, 2016,
long after the limitations period expired.
In his motion to supplement, Movant suggests that his request for relief under § 2255 is
timely due to recent Supreme Court cases construing the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e): Johnson and Mathis. 28 U.S.C. § 2255(f)(3) starts the statute of limitations on the
“date on which the right asserted was initially recognized by the Supreme Court and made
retroactively applicable to cases on collateral review[.]” Id. Johnson and Mathis are not helpful for
Movant. Neither of them recognized a new right with respect to the Sentencing Guidelines. Indeed,
the Supreme Court recently held that the vagueness analysis in Johnson does not apply to the
advisory Sentencing Guidelines. Beckles v. United States, 137 S. Ct. 886, 894 (2017). Moreover, in
Mathis, the Supreme Court did not recognize a new right at all. Instead, it applied its longstanding
rule that “application of the ACCA involves, and involves only, comparing elements.” Mathis, 136
S. Ct. at 2257. Rather than announce a new right, the Supreme Court explained that “the
elements-based approach remains the law.” Id. Thus, § 2255(f)(3) does not apply.
Insofar as Movant seeks the benefit of Amendment 782 to the Guidelines, which went into
effect in 2014, his claim is meritless. For reasons discussed in an opinion and order entered in his
criminal case, Movant does not qualify for a reduction under Amendment 782 because his range of
sentence was determined by his status as a career offender, not by the drug quantities altered by
Amendment 782. (See Mem. Op. & Order, United States v. Riley, 1:09-cr-337 (W.D. Mich. Feb. 3,
2015), ECF No. 50.)
The one-year statute of limitations in § 2255(f) is subject to equitable tolling. Hall v. Warden,
Lebanon Corr. Inst., 662 F.3d 745, 749-50 (6th Cir. 2011). “[A] habeas petitioner is entitled to
equitable tolling only if the petitioner shows that (1) ‘he has been pursuing his rights diligently,’ and
(2) that ‘some extraordinary circumstance stood in his way and prevented timely filing.’” Johnson
v. United States, 457 F. App’x 462, 469 (6th Cir. 2012) (quoting Hall, 662 F.3d at 749). Movant has
not offered any basis for equitable tolling. In his motion under § 2255, he contends that he did not
raise some of his claims on appeal because he was ignorant of the law. Assuming he asserts the same
excuse for failing to file a timely motion under § 2255, this excuse is not sufficient. See Allen v.
Yukins, 366 F.3d 396, 403 (6th Cir. 2004) (“[T]his court has repeatedly held that ‘ignorance of the
law alone is not sufficient to warrant equitable tolling.’”) (quoting Rose v. Delo, 945 F.2d 1331, 1335
(6th Cir. 1991)). Accordingly, Movant’s claims are meritless or barred by the statute of limitations.
For the reasons stated above, Movant’s motion to vacate, set aside, or correct the sentence
imposed upon him by this Court will be denied. The motion to supplement will also be denied
because the claims raised therein are meritless or untimely. In addition, a certificate of appealability
will be denied because reasonable jurists would not conclude that this Court’s decision to deny relief
under § 2255 is “debatable or incorrect.” Slack v. McDaniel, 529 U.S. 473, 485 (2000).
An order and judgment will enter consistent with this Opinion.
July 27, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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