Bradford v. United States of America

Filing 12

MEMORANDUM. Signed by District Judge Todd J. Campbell on 1/31/14. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SANCHEZ BRADFORD
v.
UNITED STATES OF AMERICA

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No. 3:13-01307
JUDGE CAMPBELL

MEMORANDUM
I. Introduction
Pending before the Court is a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or
Correct Sentence (Docket No. 1), filed by the Movant/Petitioner (hereinafter “Petitioner”), pro
se. The Government has filed a Response (Docket No. 6) to the Motion.
For the reasons set forth herein, the Court DENIES Petitioner’s Motion To Vacate
(Docket No. 1). Accordingly, this action is DISMISSED.
Also pending before the Court is Petitioner’s Application To Proceed Without Prepaying
Fees Or Costs (Docket Nos. 2, 11). The Court finds that the Petitioner is a pauper and the
Application is granted on that basis.
II. Procedural and Factual Background
Petitioner pled guilty, pursuant to a Plea Agreement, to possession with intent to
distribute a quantity of powder cocaine and marijuana, and at least five grams of cocaine base, in
violation of 21 U.S.C. § 841(a)(1). (Docket Nos. 1, 56, 57, 71 in Case No. 3:09-00083).
Through the Plea Agreement, the parties agreed that the Petitioner qualified as a Career
Offender, and that the recommended advisory guideline sentencing range was 188 to 235 months
of imprisonment. (Docket No. 57 in Case No. 3:09-00083).

The Court subsequently sentenced the Petitioner to a total sentence of 188 months.
(Docket Nos. 66, 67, 72 in Case No. 3:09-00083). The Petitioner appealed the conviction and
sentence, and the Sixth Circuit affirmed the judgment on July 8, 2011. (Docket No. 73 in Case
No. 3:09-00083).
The Petitioner subsequently filed a motion to reduce his sentence, pursuant to 18 U.S.C.
§ 3582(c)(2), based on an amendment to the United States Sentencing Guidelines that
implemented the Fair Sentencing Act of 2010 by lowering the base offense level for individuals
convicted of offenses involving cocaine base. (Docket No. 75 in Case No. 3:09-00083). The
Court denied the motion, explaining that the Petitioner’s sentence was based on his status as a
Career Offender rather than the quantity of cocaine base attributed to him. (Docket No. 93 in
Case No. 3:09-00083). The Petitioner appealed that decision, and the Sixth Circuit affirmed.
(Docket No. 99 in Case No. 3:09-00083).
Petitioner filed the pending Section 2255 Motion To Vacate on November 25, 2013.
(Docket No. 1).
III. Analysis
A. The Petitioner’s Claims
The Petitioner contends that his conviction and sentence should be vacated because trial
counsel was ineffective in failing to raise issues concerning the Fair Sentencing Act of 2010.
B. The Section 2255 Remedy
Section 2255 provides federal prisoners with a statutory mechanism by which to seek to

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have their sentence vacated, set aside or corrected.1 The statute does not provide a remedy,
however, for every error that may have been made in the proceedings leading to conviction. “‘To
warrant relief under section 2255, a petitioner must demonstrate the existence of an error of
constitutional magnitude which had a substantial and injurious effect or influence on the guilty
plea or the jury's verdict.’” Humphress v. United States, 398 F.3d 855, 858 (6th Cir.
2005)(quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).
An evidentiary hearing is not required if the record conclusively shows that the Petitioner
is not entitled to relief. 28 U.S.C. § 2255(b); Ray v. United States, 721 F.3d 758, 761 (6th Cir.
2013); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). No hearing is required “if
the petitioner’s allegations ‘cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.’” Id. Where the same
judge considering the Section 2255 motion also presided over the underlying criminal
proceedings, the judge may rely on his own recollection of those proceedings. Blackledge v.
Allison, 431 U.S. 63, 97 S.Ct. 1621, 1629 n.4, 52 L.Ed.2d 136 (1977); Ray, 721 F.3d at 761.
The Court has reviewed the pleadings, briefs, transcripts, and records filed in Petitioner's

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28 U.S.C. § 2255 states, in part:
A prisoner in custody under sentence of a court established by Act
of Congress 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, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
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underlying criminal case, as well as the pleadings, briefs, transcripts, and records filed by the
parties in this case. The Court finds it unnecessary to hold an evidentiary hearing because these
records conclusively establish that Petitioner is not entitled to relief on the issues raised.
C. Statute of Limitations
In its Response, the Government contends that the Petitioner’s Motion is barred by the
one-year statute of limitations applicable to actions brought pursuant to 28 U.S.C. § 2255.
Subsection (f) of Section 2255 establishes the one-year limitations period:
(f) A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run 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.
Applying Subsection (f)(1) here clearly indicates that the statute of limitations has expired
for Petitioner’s Section 2255 Motion. According to the Sixth Circuit, the “date on which the
conviction becomes final,” under Subsection (f)(1) means “at the conclusion of direct review.” 28
U.S.C. § 2255; Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004). When a
defendant appeals to the court of appeals, the judgment of conviction becomes final for purposes

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of Section 2255 upon the expiration of the ninety-day period in which the defendant could have
petitioned for certiorari to the Supreme Court, even when no certiorari petition is filed. Clay v.
United States, 537 U.S. 522, 525, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); Johnson v. United
States, 457 Fed. Appx. 462, 2012 WL 171379 (6th Cir. Jan. 23, 2012).
In this case, the deadline for filing a petition for writ of certiorari with the Supreme Court
expired on October 7, 2011, ninety days after the Sixth Circuit issued its decision on July 8, 2011.
See Sup. Ct. R. 13.1, 13.3 (time does not run from date mandate issued). As noted above,
Petitioner’s Motion in this case was not filed until November 25, 2013, over two years after the
one-year statute of limitations deadline. Accordingly, this action is barred by the statute of
limitations.
In any event, the Court notes that even if the statute of limitations were not applied to bar
the Petitioner’s Motion To Vacate, the Petitioner is not entitled to relief on his claim. As
discussed above, both this Court and the Sixth Circuit have held that the Petitioner’s sentence was
based on his status as a Career Offender rather than the quantity of cocaine base attributed to him.
(Docket No. 93 in Case No. 3:09-00083). Therefore, the Fair Sentencing Act of 2010 does not
apply to reduce the Petitioner’s sentence, and counsel for Petitioner was not ineffective for failing
to raise such an issue. See, e.g., Ludwig v. United States, 162 F.3d 456, 458 (6th Cir.
1998)(Counsel is not required to raise meritless arguments to avoid a charge of ineffective
assistance of counsel).
IV. Conclusion
For the reasons set forth herein, the Court concludes that the Petitioner’s Motion To
Vacate should be denied. Accordingly, this action is dismissed.
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Should the Petitioner give timely notice of an appeal from this Memorandum and Order,
such notice shall be treated as a application for a certificate of appealability, 28 U.S.C. 2253(c),
which will not issue because the Petitioner has failed to make a substantial showing of the denial
of a constitutional right. Castro v. United States, 310 F.3d 900 (6th Cir. 2002).
It is so ORDERED.

_______________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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