Grubbs v. USA

Filing 9

ORDER denying 6 Motion to Expedite; denying 7 Motion for Bond. Petitioner has 14 days to file a pleading showing the Petition is not untimely. Signed by Chief Judge Robert J. Conrad, Jr on 2/28/12. (Pro se litigant served by US Mail.)(com)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-125-RJC
JIMMIE VANCE GRUBBS,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.
_______________________________

ORDER

THIS MATTER comes before the Court on Petitioner’s Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, (Doc. No.
1). The Court also has before it Petitioner’s Motion to Expedite, (Doc. No. 6), and Motion
for Bail, (Doc. No. 7). On March 15, 2011, this Court directed Petitioner’s prior counsel to
file affidavits concerning their Bar admissions, as Petitioner contends that such attorneys
were not properly licensed when they provided him with representation in this matter. (Doc.
No. 2: Order). Former counsel have fully complied with such Order. See (Doc. Nos. 3; 4:
Affidavits of Counsel). The Court will consider the pending motions and then conduct an
initial screening under the Rules Governing § 2255 Proceedings, Rule 4(b).
I.

Petitioner’s Motion to Expedite (Doc. No. 6)
Petitioner’s Motion to Expedite seeks expedited consideration of the Motion to Vacate

under a theory that his counsel’s assistance was ineffective “per se.” The motion will be
denied, as initial review reveals that Petitioner’s counsel were in fact properly licensed in
other jurisdictions at all times relevant to this action. Petitioner is advised that, just as with
lawyers representing the government, lawyers employed by the Office of the Federal
Defender (“FDO”) are not required to have a North Carolina Bar license. Here, it appears
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that each attorney who represented Petitioner was duly admitted to another state bar and was
a member of the Western District’s FDO. The Motion to Expedite will be denied.
II.

Motion for Bail
Petitioner has also filed a Motion for Bail, (Doc. No. 7), on substantially the same

basis as his Motion to Expedite. While Petitioner cites to 18 U.S.C. §§ 3143(b)(1)(B)(i) &
(ii) in support of his motion, Section 3143(b)(2) is the applicable provision, as Petitioner was
convicted of offenses involving minor victims. See 18 U.S.C. § 3142(f)(1)(E).1 Bail is not
allowed in any circumstance after the conviction for offenses involving minor victims. Id.
Even if Section 3143(b)(1) applied, Petitioner has shown no basis for granting bail at this
time as initial review of the Petition reveals that Petitioner’s claim for ineffective assistance
of counsel is not likely to result in reversal, an order for a new trial, a sentence that does not
include a term of imprisonment, or a reduced sentence that is less than the time Petitioner has
already served. See 18 U.S.C. § 3143(b)(1)(B).
III.

Initial Screening
The Court has conducted an initial screening of the Petition under Rule 4(b) and finds,

as follows: (1) the petition has not been signed under penalty of perjury, Rule 2(b)(5), 28
U.S.C.A. foll. § 2255; and (2) Petitioner has not provided indicia that the Petition was filed
within one year of certiorari being denied (or the time for doing so) by the United States
Supreme Court, § 2255(f). The Court will discuss such elements of initial screening,
seriatim.

1

Petitioner’s conviction was for multiple counts of transportation of a minor with
intent to engage in criminal sexual activity, 18 U.S.C. § 2423(a) and for travel with intent to
engage in illicit sexual conduct with a minor in violation of 18 U.S.C. § 2423(b). (Doc. No. 32:
Judgment).
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A.

Signed Under the Penalty of Perjury

Review of the Petition reveals that although Petitioner signed the Petition, he has not
signed such under penalty of perjury, as required by Rule 2(b)(5). While the Court would
otherwise be inclined to grant Petitioner an opportunity to amend his Petition under Rule
15(a), Federal Rules of Civil Procedure, to correct such oversight, the Court must first
consider the threshold issue of whether this action is time-barred.
B.

Statute of Limitations for Filing

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes
a one-year statute of limitations for filing § 2255 motions. Based on the allegations of the
Petition, the statute of limitations runs from “the date on which the judgment of conviction
becomes final . . . .” 2 28 U.S.C. § 2255(f)(1). A conviction is final for § 2255(f)(1) purposes
“on the date when the petitioner could no longer seek direct review.” United States v.
Walker, 165 F.3d 22, 22 (4th Cir. 1998) (unpublished). Here, Petitioner filed an appeal, but
did not seek certiorari from the United States Supreme Court. When “a petitioner files an
appeal but not a petition for writ of certiorari, his judgment is not final until 90 days after the
court of appeals renders its decision.” Hosey v. United States, 518 F. Supp. 2d 732, 734
(D.S.C. 2007) (citing Walker, 165 F.3d at 22). The Court of Appeals for the Fourth Circuit
rendered its decision on November 6, 2009. See United States v. Grubbs, 585 F.3d 793 (4th
Cir. 2009). Ninety days from November 6, 2009, was February 4, 2010.3

2

While it is conceivable that Petitioner discovered the fact that his attorneys were not
licensed in North Carolina at a later date, such contention is not a viable basis for Section 2255
relief, as his counsel clearly were licensed attorneys allowed to practice in this district. Absent
such contention, the remainder of his claims are patently based on facts that were known at the
time judgment became final.
3

In a persuasive opinion, Judge Osteen, adopting the recommendation of the
magistrate judge, held that “according to the Supreme Court, the “entry” of the judgment
described in § 2255 is the filing of the judgment and the mandate is a later event.” McLaurin v.
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Petitioner filed the Petition on March 11, 2011, a filing date that the Court will deem
to be March 8, 2011, which is the date marked on the envelope as the date on which
Petitioner delivered his Petition to prison authorities. (Doc. No. 1-1). Based on a filing date
of March 8, 2011, the Petition is time-barred by the AEDPA’s one-year statute of
limitations.4
The Court has also considered whether there is any reason to equitably toll the running
of the one-year statute of limitations. Because the AEDPA’s “limitations provisions . . . do
not speak in jurisdictional terms or refer in any way to the jurisdiction of district courts . . .
. § 2255's limitation period is subject to equitable modifications such as tolling.” United
States v. Prescott, 221 F.3d 686, 688 (4th Cir. 2000). Equitable tolling is an “extraordinary
remedy” and “sparingly granted.” Id.
As Petitioner does not address the reasons for the late filing in his Petition,5 he will
be allowed an opportunity to show reasons he believes the filing date should be equitably
tolled. See Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002). Petitioner is advised that this
is not a time to argue the merits of his case, and he should specifically address the following
issues:
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whether he has been pursuing his rights diligently; and

United States, 2007 WL 2159616, at *2 (M.D.N.C. July 26, 2007) (citing Clay v. United States,
537 U.S. 522, 525 (2003). Thus, the date of mandate has no bearing on the timeliness of this
Petition. In any event, 90 days from mandate in this case was February 28, 2010, which would
also make Petitioner’s March 7, 2011, filing untimely.
4

Petitioner dated the Petition March 7, 2011.

5

Petitioner did not use the forms made available by the court for filing his Section
2255 Petition. Such forms contain a subdivision which allows a Petitioner to explain why the
statute of limitations does no bar the motion.
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(2)

whether some extraordinary circumstance stood in his way and prevented
timely filing.

See Holland v. Florida, 130 S.Ct. 2549, 2562 (2010).
IT IS, THEREFORE, ORDERED that:
1.

Petitioner’s Motion to Expedite, (Doc. No. 6), is DENIED;

2.

Petitioner’s Motion for Bail, (Doc. No. 7), is DENIED; and

3.

Petitioner is ALLOWED 14 days within which to file a pleading showing the
reasons he believes his Petition is not untimely.

The Clerk of this Court is instructed to send a courtesy copy of this Order to the
United States Attorney.

Signed: February 28, 2012

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