Clayton v. USA

Filing 16

MEMORANDUM AND OPINION.Signed by District Judge Harry S Mattice, Jr on July 1, 2020. (SAC)Mailed to Clayton.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
MARCIE VELVET CLAYTON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)
)

No. 1:17-cv-275, 1:15-cr-50
Judge Mattice
Magistrate Judge Lee

MEMORANDUM OPINION
On October 2, 2017, federal inmate Marcie Velvet Clayton filed a motion to vacate,
set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. Clayton argues she was
deprived of her right to effective assistance of counsel due to her trial counsel’s failure to
properly advise her during the plea negotiations and failure to file a direct appeal on her
behalf. [Doc. 1]. As ordered, the United States filed a response to Clayton’s Motion
[Doc. 4], to which she replied [Doc. 5]. She has since filed two motions to amend [Docs. 8
& 13], a motion seeking permission to serve discovery on her former counsel [Doc. 11],
and several other motions.
Having considered the pleadings and the record, along with the relevant law, the
Court finds there is no need for an evidentiary hearing 1 and Clayton’s § 2255 motion

An evidentiary hearing is required on a § 2255 motion unless the motion, files, and record conclusively
show that the prisoner is not entitled to relief. See 28 U.S.C. § 2255(b). It is the prisoner’s ultimate burden,
however, to sustain his claims by a preponderance of the evidence. See Pough v. United States, 442 F.3d
959, 964 (6th Cir. 2006). Accordingly, where “the record conclusively shows that the petitioner is entitled
to no relief,” a hearing is not required. Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)
(citation omitted).

1

[Doc. 1] will be DENIED. The motions to amend [Docs. 8 & 13] and will likewise be
DENIED and her motion for discovery [Doc. 11] DENIED AS MOOT.
I.

BACKGROUND FACTS AND PROCEDURAL HISTORY
On April 28, 2015, a grand jury indicted Clayton on one count of conspiracy to

distribute 50 grams or more of methamphetamine and possession with intent to
distribute 50 grams or more of methamphetamine. [Case No. 1:15-cr-50, Crim. Doc. 22].
Pursuant to a written plea agreement, Clayton pled guilty to the conspiracy charge. [Crim.
Doc. 54]. The plea agreement also reflects the Government’s intent to file a § 851
enhancement:
The United States will file an enhancement under 21 U.S.C. § 851 listing one
prior drug felony conviction for the defendant. As a result of this conviction
and enhancement, the punishment for this offense is as follows:
Imprisonment for at least 20 years and up to life; followed by a 10-year
period of supervised release; and a fine of up to $20 million dollars.
[Id. at 1]. The agreement also indicates the Government would move to dismiss the
remaining counts at sentencing. [Id]. In the plea agreement, Clayton also waived her right
to file any motions pursuant to § 2255 other than those alleging prosecutorial misconduct
or ineffective assistance of counsel. [Id. at 7]. The presentence report indicates a statutory
mandatory minimum of 20 years imprisonment, resulting in a functional guideline range
of 240 months. [Crim. Doc. 108 at 15]. Absent the enhancement, Clayton’s guideline
imprisonment range would have been 135 to 168 months. [Id.].
On March 21, 2016, the Court granted a Government motion for downward
departure and sentenced Clayton to 135 months’ imprisonment and 5 years of supervised
release. [Crim. Doc. 113 at 2]. Clayton did not appeal and her conviction therefore became
final on April 4, 2016.

2

On October 2, 2017, Clayton’s Motion to Vacate [No. 1:17-cv-00275, Doc. 1] was
docketed. The Motion was executed by Clayton on September 25, 2017. [Id.]. Clayton
concedes her motion is untimely, but argues it is “due in part to the transfer of prisoners,
and because of a delay in receiving her legal work to proceed.” [Id. at 12]. Her motion
raises two ineffective assistance of counsel arguments. First, she argues she was deprived
of her right to effective assistance of counsel because her trial counsel failed to advise her
“about the most likely consequence she was facing if she rejected the government’s first
plea agreement, because counsel failed to mention that she would be facing a mandatory
minimum of 20 years to life under an 851 enhancement.” [Id. at 4]. For her second
ground, she says she instructed her trial counsel to file and prosecute a direct appeal and
he did not do so. [Id. at 5].
The Government argues Clayton’s motion is untimely and that she is not entitled
to equitable tolling. [Doc. 4]. It concedes that if timely, an evidentiary hearing on the
motion is required.
II.

LEGAL STANDARD
After a defendant has been convicted and exhausted his appeal rights, a court may

presume that “he stands fairly and finally convicted.” United States v. Frady, 456 U.S.
152, 164 (1982). A court may grant relief under 28 U.S.C. § 2255, but the statute “does not
encompass all claimed errors in conviction and sentencing.” United States v. Addonizio,
442 U.S. 178, 185 (1979). Rather, collateral attack limits a movant’s allegations to those
of constitutional or jurisdictional magnitude, or those containing factual or legal errors
“so fundamental as to render the entire proceeding invalid.” Short v. United States, 471
F.3d 686, 691 (6th Cir. 2006) (citation omitted); see also 28 U.S.C. § 2255(a).

3

III.

ANALYSIS
A.

Motion to Vacate

Petitioner’s collateral attack is time-barred and she has not presented any
justification for tolling the limitations period. Section § 2255(f) gives a federal defendant
one year to file a motion to vacate. That time period begins 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 diligence.
28 U.S.C. § 2255(f).
Petitioner did not take a direct appeal and her conviction therefore became final
fourteen days after its entry, when the time to file a direct appeal expired. See Fed. R. App.
P. 4(b)(1)(A) (providing fourteen days for direct appeal); Sanchez-Castellano v. United
States, 358 F.3d 424, 427 (6th Cir. 2004)(“[W]hen a federal criminal defendant does not
appeal to the court of appeals, the judgment becomes final upon the expiration of the
period in which the defendant could have appealed to the court of appeals, even when no
notice of appeal is filed.”); Blain v. United States, 766 F. App’x 327, 329 (6th Cir. 2019)
(absent direct appeal, conviction became final fourteen days after judgment was entered).
Petitioner was required to file her motion to vacate within one year of April 4, 2016, unless
a different subsection of 2255(f) renders her petition timely.

4

Clayton argues equitable tolling should apply to her late-filed petition. She says she
was in transit for more than 120 days and did not receive her legal materials for another
60 days. [Doc. 2 at 10]. She says the county jail (in which she was presumably incarcerated
during transit) did not have adequate legal materials and she did not have access to her
own. [Id.]. She does not explain why she was unable to prepare her petition during the 60
days in which she waited for her personal legal materials, or in the six to eight months in
which she was neither in transit nor awaiting her personal effects. She does not claim that
she was unaware of the filing deadline.
“Courts grant equitable tolling ‘sparingly,’ and a habeas petitioner is entitled to
equitable tolling only if he shows that (1) ‘he has been pursuing his rights diligently, and
(2) ‘some extraordinary circumstance stood in his way and prevented timely filing.’”
Blain, 766 F. App’x at 330 (quoting Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745,
749-50 (6th Cir. 2011)). The United States Court of Appeals for the Sixth Circuit has
rejected equitable tolling in factual circumstances very similar to those here. United
States v. Stone, 68 F. App’x 563 (6th Cir. 2003). In Stone, the petitioner filed his § 2255
motion almost eight months after his conviction became final. He argued he was unable
to timely submit his motion to vacate because he was transferred from a federal prison to
a state jail and was not allowed to bring his personal property or legal materials with him.
Id. at 565. He was also not allowed to do legal research. Id. Stone admitted, however, that
he was aware of the limitation period. Id. The Sixth Circuit found that “Stone had almost
six months before he was transferred to… jail in which to file his § 2255 motion.” Id. Stone
also argued that he did not have sufficient library access, but “allegations regarding
insufficient library access, standing alone, do not warrant equitable tolling.” Id. The court
found Stone had failed to establish that equitable tolling should apply. Id.
5

True, the Sixth Circuit has allowed equitable tolling where a prison transfer is
accompanied by other factors beyond a petitioner’s control and a petitioner’s diligence is
established. Jones v. United States, 689 F.3d 621 (6th Cir. 2012). That is not the case here.
In Jones, the petitioner’s motion to vacate was based on a new rule of substantive law
announced in April 2008, but Jones was not aware of the Supreme Court’s decision until
May 2009. Id. at 627. The court acknowledged that generally, a prisoner’s limited access
to a law library and pro se status are insufficient to qualify as extraordinary circumstances
to justify equitable tolling. Id. But Jones’s ignorance of the Supreme Court decision was
due in large part to four unexpected moves in the months preceding and immediately
following the Court’s decision, during which time he did not have his legal materials. Id.
at 627. He was partially illiterate and relied on other prisoners for knowledge of changes
in the law. Id. He also had a variety of medical conditions, including seizures, that
required frequent medication and made it difficult for him to obtain legal information. Id.
Finally, Jones averred that throughout his transfers, he was constantly questioning others
for legal advice, and when he learned of the change in law, filed his petition within two
months. Id.
The Sixth Circuit observed that individually, these factors might not constitute
extraordinary circumstances. Id. at 627-28. Taken together, however, it found them
sufficient, and further found Jones had demonstrated he was not sleeping on his rights.
Id. The court reversed the district court and remanded for further proceedings. Id.
Similarly, in Solomon v. United States, 467 F.3d 928 (6th Cir. 2006), the Sixth
Circuit found equitable tolling where the petitioner had limited law library access and was

6

unable to obtain his trial transcript. 2 As in Jones, Solomon’s timeline was triggered by a
change in the law – after the enactment of the Antiterrorism and Effective Death Penalty
Act, prisoners had one year within which to bring a habeas petition. 3 Solomon did not
hear of the new deadline for many months due to the poor circulation of legal information
in the prison in which he was incarcerated. Id. at 933. He averred he had worked diligently
day and night, but that in the first few months of 1997, there was a huge demand for
limited library resources due to the AEDPA deadline. Id. He was then transferred
unexpectedly a month before his deadline without his legal materials. Id. at 934. He was
placed in administrative detention, transferred again, and then transferred back to his
original prison. Id. During this time he repeatedly sought filing information and also filed
a notice of intent to file a § 2255. Id. He completed his petition within a month of returning
to his original prison. Id. Under these facts, the Sixth Circuit found the petitioner was
entitled to equitable tolling.
There are crucial distinctions between these cases and Petitioner’s. In both
Solomon and Jones, the petitioners were not initially aware that the clock had begun
ticking on their rights. Their access to a law library and legal materials was thus pertinent
to when they discovered the legal basis for their claims and whether they diligently
pursued their motions. The Jones court acknowledged this distinction: “Even though
knowledge of filing deadlines is no longer part of our inquiry, we note the inherent
differences between when the clock starts upon the conclusion of direct appeal and when
the clock starts upon issuance of a new Supreme Court case.” 689 F.3d at 627 n.4.
Solomon was decided under the obsolete five-factor test set forth in Dunlap v. United States, 250 F.3d
1001 (6th Cir. 2001), since replaced by consideration of extraordinary circumstances and due diligence.
However, the Sixth Circuit has “continued to rely on its analysis of potential considerations when applying
the new test.” Jones, 689 F.3d at 628 n. 5.
3 Prior to the AEDPA, a motion under § 2255 could be brought at any time. Id. at n.2.
2

7

Although inmates are expected to have knowledge of both, “it would strain credulity to
suggest that a defendant has the same level of access to information about the issuance of
new Supreme Court cases as he does about his direct appeal.” Id.
Here, Petitioner does not contend she was unaware of the limitations period. With
respect to her contention that her lawyer failed to adequately advise her in rejecting an
earlier plea deal, she would have been aware of this failure before her sentencing.
Likewise, she does not allege a delay in discovering that her lawyer did not file an appeal
on her behalf. In fact, Petitioner provides no timeline of her transfers or the purported
delays in accessing her legal materials. She appears to allege she was unable to begin her
motion for approximately 4-6 months after her sentence became final. [See Doc. 5 at 2
(“[D]ue diligence cannot take place until she reaches the prison.”)]. She does not allege
that anything prevented her from preparing and filing the motion in the 6-8 months that
followed. Accordingly, she has not met her burden of demonstrating she was diligent in
pursuing her claims or that extraordinary circumstances beyond her control prevented
her from preparing and timely filing her petition. See Jones, 689 F.3d at 628.
Petitioner’s reliance on § 2255(f)(2) and (4) are similarly unavailing. She has not
alleged an impediment to her motion created by “government action in violation of the
Constitution or laws of the United States.” 28 U.S.C. § 2255(f)(2). She has simply alleged
she was transferred and unable to effectively prepare her petition during that time.
Likewise, she did not discover new facts supporting her claim. All of the facts relevant to
her motion would have been known to her when her lawyer failed to file an appeal.
B.

Miscellaneous Motions

Clayton also filed two motions to amend. [Docs. 8 & 13]. In her first motion, she
indicates that, while she is still proceeding pro se, she expects legal assistance and would
8

like to submit a new petition with the aid of an attorney. [Doc. 8]. In her second motion,
she indicates her family and a third party have obtained case files that her former counsel
allegedly did not provide to her. [Doc. 13]. She seeks leave to expand the record to submit
this new information, but does not indicate its contents or significance. Neither motion
presents new information or a basis for tolling the limitations period. The motions instead
seek to expand upon her time-barred claims and will therefore be DENIED AS MOOT.
Likewise, because the motion to vacate is untimely, Petitioner is not entitled to
discovery regarding her substantive claims. The Motion for Leave to Serve Interrogatories
[Doc. 11] is therefore DENIED AS MOOT pursuant to Rule 6(a) of the Rules Governing
Section 2255 Proceedings for the United States District Courts.
IV.

CERTIFICATE OF APPEALABILITY
When considering a § 2255 motion, this Court must “issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” Rule 11, Rules
Governing Section 2255 Proceedings for the United States District Courts. Petitioner
must obtain a COA before she may appeal the denial of her § 2255 motion. 28 U.S.C.
§ 2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For cases rejected on their
merits, a movant “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong” to warrant a COA. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim that has been rejected
on procedural grounds, a movant must demonstrate “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in

9

its procedural ruling.” Id. Based on the Slack criteria, the Court finds that a COA should
not issue in this cause.
V.

CONCLUSION
For the reasons stated herein, Petitioner has failed to establish any basis upon

which § 2255 relief could be granted, and it is therefore ORDERED that her § 2255
motion [Civ. Doc. 1] is DENIED.
It is FURTHER ORDERED that the Motion to Amend [Civ. Doc. 8] and Second
Motion to Amend [Civ. Doc. 13] are DENIED; the Motion for Leave to Serve
Interrogatories [Civ. Doc. 11] is DENIED AS MOOT.
A certificate of appealability from the denial of Petitioner’s § 2255 motion will be
DENIED. A separate judgment will enter.
SO ORDERED this 1st day of July, 2020.

____/s/ Harry S. Mattice, Jr._____
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

10