Davis v. USA

Filing 10

ORDER: ORDERED that: (1) movant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255 is denied as untimely filed; and(2) this case is dismissed with prejudice. Signed on May 6, 2014 by District Judge Ortrie D. Smith. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CHARLES D. DAVIS,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 13-1240-CV-W-ODS-P
Crim. No. 09-00353-01-CR-W-ODS

OPINION AND ORDER DENYING MOTION FILED PURSUANT TO 28 U.S.C.' 2255
Movant is a federal prisoner confined at the Federal Correctional Institution in Forrest City,
Arkansas, pursuant to his 2011 his plea of guilty and conviction for one count of conspiracy to distribute
280 grams or more of cocaine base (crack) in violation of 21 U.S.C. '§ 841(a)(1), (b)(1)(A), and 846 in
the above-numbered federal criminal case. After indictment but prior to movant’s guilty plea, Congress
amended the provisions of the Controlled Substances Act under Title 21 of the United States Code to
alter the amounts of cocaine base to trigger enhanced statutory punishments. The previous drug amount
under 21 U.S.C. §841(b)(1)(A) of 50 grams was increased to 280 grams. See Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372.
When movant entered a guilty plea on February 22, 2011, the plea agreement provided that the
government would dismiss all but one of the charges, including Count Two, which would have required
a statutory minimum consecutive sentence of 60 months’ imprisonment. A detailed factual basis for the
plea was part of the plea agreement, which contemplated that the amount of cocaine base involved in
2008 and 2009 was more than 1,000 grams.1

The statutory penalties were outlined in the plea

1 The Government has not responded to the Section 2255 motion’s merits, but the Court nonetheless notes the motion lacks
merit. The failure to “update” the Indictment to reflect the retroactive effect of the Fair Sentencing Act did not affect the

1

agreement, which advised movant that the Sentencing Guidelines computations which took effect after
the Fair Sentencing Act were being utilized to compute his sentence. In his plea agreement, movant
waived his constitutional right to a jury trial and to appeal or collaterally challenge his sentence.
Movant was sentenced to a term of 168 months’ incarceration on July 26, 2011. Movant did not file an
appeal of that sentence, and his sentence became final on August 9, 2011.
On December 23, 2013, this Court received a motion from movant seeking to vacate his sentence
pursuant to 28 U.S.C. § 2255 and ordered movant to file his motion on court-approved forms by January
24, 2014. On January 21, 2014, movant filed the current Section 2255 motion and a sixteen-page
memorandum in support thereof (Doc. Nos. 3 and 4), claiming that his sentence is illegal because of the
drug quantity of more than 280 grams of cocaine base, because the 10-year statutory minimum sentence
under Section 841(b)(1)(A) was illegal, and because his defense counsel failed to challenge the altered
drug quantity as a constructive amendment of the indictment. Movant also attacks Count Two, which
was dismissed as a result of the guilty plea, but which he alleges was used to enhance his sentence on
Count One.
Although movant admits that his present Section 2255 motion is untimely filed, movant argues
that he is entitled to equitable tolling because he has no legal training or knowledge and because he
relied on his defense counsel to file a timely “appeal.” Respondent argues that movant’s lack of
education and training in the legal field does not establish extraordinary circumstances beyond his
control or that he was lulled into inaction causing him to wait until December 19, 2013, to place the

proceeding’s fairness or any of movant’s rights. This conclusion is based on the fact that movant conceded, in the plea
agreement, that his crime involved more than 1,000 grams of cocaine base – much more than the 280 grams required after the
Fair Sentencing Act was passed. Cf. United States v. Higgins, 710 F. 3d 839, 846-47 (8th Cir.), cert. denied, 134 S. Ct. 343
(2013).

2

present motion in the prison mail system sufficient to excuse the untimely filing of his Section 2255
motion pursuant to the one-year statute of limitations. Doc. No. 6, p. 6.
Because movant’s judgment was entered on July 26, 2011, and because he did not file a direct
appeal, his conviction became final and the one-year statute of limitations began to run no later than
August 9, 2011, when the fourteen-day period for taking a direct appeal under Fed. R. App. P.
4(b)(1)(A) expired. Movant mailed his Section 2255 motion December 19, 2013, well beyond a year
after the statutory deadline had expired on August 10, 2012.
The Eighth Circuit has held that equitable tolling of the one-year statute of limitations applies
only where extraordinary circumstances beyond a prisoner=s control prevent timely filing, see United
States v. Hernandez, 436 F. 3d 851, 858 (8th Cir. 2006), and where the prisoner has exercised due
Adiligence in pursuing the matter.@ See United States v. Martin, 408 F. 3d 1089, 1095 (8th Cir. 2005).
The government had no part in lulling movant into inaction in this case or in preventing movant from
filing a timely direct appeal or Section 2255 motion. Any unfamiliarity with the laws or lack of legal
research materials do not relieve movant of the duty to file a timely motion pursuant to 28 U.S.C. '
2255. See United States v. McIntosh, 332 F. 3d 550, 551 (8th Cir. 2003) (citing Cross-Bey v. Gammon,
322 F. 3d 1012, 1015-16 (8th Cir.) (unrepresented prisoner=s lack of legal knowledge does not support
equitable tolling), cert. denied, 540 U.S. 971 (2003)); Baker v. Norris, 321 F. 3d 769, 771 (8th Cir.)
(limitations on use of law library at facility insufficient to require equitable tolling), cert. denied, 539
U.S. 918 (2003).
Moreover, movant has failed to demonstrate due diligence in pursuing this Section 2255 motion
by filing it over fourteen months out-of-time. Earl v. Fabian, 556 F. 3d 717, 724 (8th Cir. 2009) (no due
diligence when delayed filing motion despite having notice and at least eight months to file motion);
Anjulo-Lopez v. United States, 541 F. 3d 814, 815-16(8th Cir. 2008)(no due diligence when failed to
3

determine that appeal had not been filed and when failed to pursue claims). Movant was free at any time
after final judgment was entered and before the one-year statute of limitations period had expired to file
a timely Section 2255 motion. Id. Therefore, this case was untimely filed and must be dismissed.
Accordingly, it is ORDERED that:
(1) movant=s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. ' 2255 is
denied as untimely filed; and
(2) this case is dismissed with prejudice.

/s/ Ortrie D. Smith
ORTRIE D. SMITH
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated:_May 6, 2014..

4