Kincaid v. USA
Filing
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MEMORANDUM OPINION - Signed by District Judge Thomas A Varlan on 7/30/2019. (copy mailed to Randy Kincaid)(KMK)
]\NITED STATES DISTRICT COURT=
EASTERN DISTRICT OF TENNESSEE
RANDY KINCAID,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Nos.: 3:10-CR-160-TAV-HBG-2
3:17-CV-29-TAV-HBG
MEMORANDUM OPINION
This is a pro se prisoner’s amended motion to vacate, set aside, or correct a sentence
under 28 U.S.C. § 2255 [No. 3:17-cv-29-TAV-HBG, Doc. 5-1]. Respondent responded,
asserting that the motion is time-barred, among other things [Id., Doc. 11]. For the
following reasons, the § 2255 motion [Id., Doc. 1] will be DENIED as time-barred, and
this action will be DISMISSED.
I.
BACKGROUND
On October 30, 2013, Petitioner was found guilty by jury trial of 26 counts of a 27-
count Superseding Indictment [No. 3:10-cr-160-TAV-HBG-2, Doc.185]. On May 9, 2014,
the Court sentenced Petitioner to 830 months’ imprisonment followed by three years of
supervised release [Id., Doc. 248]. Petitioner appeal this conviction; however, the Sixth
Circuit rejected his claims and affirmed his conviction and sentence. See generally United
States v. Kincaid, 631 F.App’x 276 (6th Cir. 2015). On January 30, 2017, Petitioner filed
a § 2255 motion, arguing that he is entitled to a sentence reduction based on ineffective
assistance of counsel [No. 3:17-cv-29-TAV-HBG, Doc. 1]. Petitioner later moved to
amend his motion, which this Court granted [No. 3:17-cv-29-TAV-HBG, Doc. 9]. The
Court now considers Petitioner’s amended § 2255 motion [No. 3:17-cv-29-TAV-HBG,
Doc. 5-1].
II.
DISCUSSION
The government argues that Petitioner’s § 2255 motion is time-barred [No. 3:17-
cv-29-TAV-HBG, Doc. 11]. A prisoner in federal custody may file a motion under 28
U.S.C. § 2255, “claiming the right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack.” Section 2255(f)
provides that the one-year statute of limitations, which 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 diligence.”
A conviction becomes “final [for purposes of § 2255(f)(1)] at the conclusion of
direct review.” Brown v. United States, 20 F. App’x 373, 374 (6th Cir. 2001) (quoting
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Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001)). If affirmed on appeal, a
conviction becomes final when the 90-day period for seeking a writ of certiorari expires.
Clay v. United States, 537 U.S. 522, 525 (2003); accord U.S. Sup. Ct. Rule 13(3).
Petitioner’s conviction and sentence were affirmed by the Sixth Circuit on October
26, 2015, and he did not seek a writ of certiorari from the Supreme Court. Therefore,
Petitioner’s conviction became final on January 25, 2016. Pursuant to the one-year statute
of limitations period, Petitioner had one year, until January 25, 2017, in which to file a
timely § 2255 motion. See 28 U.S.C. § 2255(f)(1). Petitioner, however, executed his
§ 2255 motion on January 26, 2017, and the motion was not filed with the Court until
January 30, 2017 [No. 3:17-cv-29-TAV-HBG, Doc. 1]. Petitioner’s § 2255 motion is
therefore time-barred under 28 U.S.C. §2255(f)(1). Moreover, Petitioner does not identify
any new right recognized by the Supreme Court, so his motion cannot be brought under
the alternate one-year limitations period in § 2255(f)(3). Accordingly, Petitioner’s motion
will be time-barred unless he is entitled to equitable tolling.
Section 2255(f)’s statute of limitations is not jurisdictional and may be tolled under
limited, extraordinary circumstances. Dunlap v. United States, 250 F.3d 101, 1007 (6th
Cir. 2001). A petitioner bears the burden of establishing that equitable tolling applies to
his case, and the doctrine is used sparingly. See Jurado v. Burt, 337 F.3d 638, 642 (6th
Cir. 2003); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). In order to demonstrate that
he is entitled to equitable tolling, a petitioner must show “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way and
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prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010); Hail v.
Warden, 662 F.3d 745, 750 (6th Cir. 2011); see also Jurado, 337 F.3d at 643 (holding that
“[a]bsent compelling equitable considerations, a court should not extend limitations by
even a single day.”).
In his amended § 2255 motion, Petitioner asserts that his counsel was ineffective in
a variety of ways. Petitioner argues that he is entitled to equitable tolling because he was
in transit for five months and on “lock-down” for “extended periods of time” [No. 3:17cv-29-TAV-HBG, Doc. 5-1]. However, the Sixth Circuit has previously held that time
spent in transit is not a circumstance extraordinary enough to justify equitable tolling where
a Petitioner could have diligently pursued his rights and timely filed a § 2255 motion during
the remaining year-period available to him. See Brown v. United States, 20 Fed. App’x
373, 375 (6th Cir. 2001). And Petitioner does not provide any explanation for his failure
to timely file his motion in the periods that he was not in transit or on lock-down. Thus,
Petitioner has not demonstrated or established that he has pursued his rights diligently, or
that any extraordinary circumstances prevented him from filing a timely § 2255 motion.
The Court therefore has not been provided with “compelling equitable considerations” to
justify extending the period of limitations by “even a single day.” Jurado, 337 F.3d at 643.
Because his § 2255 motion is untimely and he is ineligible for equitable tolling, Petitioner’s
motion will be dismissed.
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III.
CONCLUSION
The Court finds that Petitioner is not entitled to relief pursuant to 28 U.S.C. § 2255,
and his motion to vacate, set aside or correct sentence [No. 3:17-cv-29-TAV-HBG, Doc.
5-1] will be DENIED and this action will be DISMISSED. The Court will CERTIFY
that any appeal from this action would not be taken in good faith and would be totally
frivolous. Therefore, this Court will DENY petitioner leave to proceed in forma pauperis
on appeal. See Fed. R. App. P. 24. As the Court has dismissed this action on procedural
grounds without reaching the merits of the underlying claims, and jurists of reason would
not find it debatable that the Court is correct in finding that the § 2255 petition is untimely,
Slack v. McDaniel, 529 U.S. 473, 484 (2000), a certificate of appealability SHALL NOT
ISSUE. 28 U.S.C. § 2253; Fed. R. App. P. 22(b). A Judgment will enter DENYING the
Motion [No. 3:17-cv-29-TAV-HBG, Doc. 5-1].
AN APPROPRIATE ORDER WILL ENTER.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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