Kincaid v. USA
MEMORANDUM AND OPINION re defendants motion for permission to preserve the right to file a motion under 28 U.S.C. § 2255 pursuant to Johnson v. United States, 576 U.S. 591 (2015) and Welch v. United States, 136 S. Ct. 1257 (2016) [case 3:10-CR-160, Doc. 328]. Signed by District Judge Thomas A Varlan on April 26, 2021. (JAN)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Before the Court is defendant’s motion for permission to preserve the right to file a
motion under 28 U.S.C. § 2255 pursuant to Johnson v. United States, 576 U.S. 591 (2015)
and Welch v. United States, 136 S. Ct. 1257 (2016) [Doc. 328].1 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 runs
from the latest of several dates, but relevant here is subsection (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.” Since the Johnson and Welch cases were decided on June 26, 2015, and April 18,
All docket citations refer to the underlying criminal case unless otherwise indicated.
2016, respectively, in his motion, defendant requested permission to preserve the right to
seek relief under these cases when he filed his § 2255 motion.
The Court notes that defendant filed his motion to vacate his sentence under § 2255
[Doc. 330], and the Court has ruled on his motion [Docs. 376 and 377], holding that it was
untimely. The same reasoning applies here to the extent that defendant preemptively
attempted to toll the statute of limitations via the present motion.
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
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.”).
As in his § 2255 motion [Doc. 330], here, defendant states he had recently been
transferred between facilities and “for several months was moved from prison to prison.
During that time he did not have access to law library facilities” [Doc. 328]. Defendant
therefore appears to seek equitable tolling such that the claims pursuant to these cases will
not be time-barred. As discussed in this Court’s prior order [Doc. 376], 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. Accordingly, defendant’s motion [Doc. 328] is DENIED.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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