Granger v. United States of America

Filing 7

ORDER Denying Motion Under 28 U.S.C. 2255. Signed by Judge S. Thomas Anderson on 8/3/15. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JOHNATHON GRANGER
Movant,
v.
UNITED STATES OF AMERICA
Respondent.

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Civ. No. 2:12-cv-02890-STA-tmp
Cr. No. 2:09-cr-20113-STA-1

ORDER DENYING MOTION UNDER 28 U.S.C. § 2255

Before the Court is Johnathon Granger’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence (“§ 2255 Motion”), filed October 9, 2012. (ECF No. 1). Granger,
Bureau of Prisons register number 22854-076, an inmate at the United States Penitentiary in
Pollock, Louisiana, “asks that his case/conviction/sentence be vacated and remanded as well as
voided for violations to his rights under the Federal constitution which were violated.” (Id.).
The United States responded to the Motion on March 21, 2013. (ECF No. 6). For the reasons
stated below, Granger’s Motion is DENIED.
BACKGROUND
On March 24, 2009, a grand jury charged Granger in a single count indictment with being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Redacted Indictment,
United States v. Granger, 2:09-cr-20113-STA-1 (W.D. Tenn.), (ECF No. 1). Granger entered a
plea of not guilty on April 15, 2009. (ECF No. 12). On October 7, 2009, Granger entered into a
negotiated plea agreement with the United States. (ECF Nos. 25, 26). Granger agreed “that he is
pleading guilty because he is in fact guilty of the offenses charged in COUNT ONE of the

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indictment.” (ECF No. 26). The Court held a plea colloquy, and the Court accepted Granger’s
guilty plea. (ECF No. 27). On February 26, 2010, the Court sentenced Granger to 198 months
incarceration and 4 years supervised release. (ECF No. 39). The Court entered judgment on
March 3, 2010. (ECF No. 39).
Although he does not state the date on which he deposited the paper in the prison’s
internal mailing system, 1 Granger signed his § 2255 Motion on October 3, 2012. The Motion
was then filed with the Court on October 9, 2015. Granger’s § 2255 Motion asserts five grounds
for relief: (1) improper use of prior juvenile convictions to enhance his sentence; (2) failure of
counsel to file a notice of appeal; (3) ineffective assistance of counsel; (4) violation of due
process of law; and (5) another claim of ineffective assistance of counsel. Taken together,
Granger asserts ineffective assistance of counsel for his counsel’s failure to file an appeal, failure
to challenge the Presentence Report calculations, failure to establish Granger’s innocence, for
coercing Granger to accept a “bogus plea offer,” and for failing to file “necessary motions.”
Granger’s § 2255 motion, however, is time-barred.
DISCUSSION
I. Statute of Limitations and Equitable Tolling
In its Answer, the United States argues that Granger’s § 2255 Motion is time-barred.
Section 2255 imposes a one-year period of limitation, which runs from the latest of the
following:
(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 of the
United States is removed, if the movant was prevented from
making a motion by such governmental action;

1

See Rule 3(d) of Rules Governing Section 2255 Proceedings.
2

(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. 2
When a criminal defendant does not take a direct appeal, “an unappealed district court judgment
of conviction becomes ‘final’ ten days after the entry of judgment, at least where the defendant
has not actually sought an extension of appeal time for good cause or excusable neglect.” 3
Granger did not take a direct appeal; therefore, his conviction became final March 13, 2010—ten
days after the entry of judgment. The period of limitation ran from that date until March 13,
2011. Even assuming that Granger deposited his § 2255 Motion in the prison’s mail system on
the day that he declared the information in his Motion true—October 3, 2012—his Motion is
nearly a year and a half late. Granger does not allege that subsections (2), (3), or (4) apply to his
claims. 4
In his Motion, Granger offers an explanation for late filing. He states that he believed
that his attorney had filed a notice of appeal and that he should await a decision from the Court
of Appeals. He goes on:
The petitioner has just been made aware that after his immediate
request to his counsel (Tyrone Jemal Paylor) to submit and file a
2

28 U.S.C. § 2255(f).

3

Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004).

4

The Court’s analysis of equitable tolling below applies to an argument—not raised—
that 28 U.S.C. § 2255(f)(4) should start the statute of limitations in his case. He “discovered”
the facts the day after his sentencing, and he did not file an appeal. He did not exercise due
diligence in pursuing his claims. If Granger seeks tolling under 28 U.S.C. § 2255(f) based on a
claim of actual innocence, he has presented no new reliable evidence of his innocence. He only
asserts that the crime to which he pleaded guilty was “something [he] did not do at all.” § 2255
Mot. 5, ECF No. 1.
3

notice of appeal in his (Granger) behalf, right after sentencing, has
been voided and no notice of appeal was taken or submitted by
said attorney. The petitioner was made aware of this when he
ordered a copy of the docket sheet to his case, dated August 16th,
2012.
The petitioner was under the impression prior to August 16th,
2012 that counsel was handling his appeal and that he had to wait
patiently for the court of appeals to bring forth an answer. But,
now petitioner is aware that his attorney never filed any such
appeal notice. Therefore petitioner is aware that his attorney never
filed any such appeal notice. Therefore petitioner brings on the
instant motion pursuant to § 2255 arguing what he expected his
attorney to argue on appeal and hereby showing how and why his
counsel was ineffective as well. 5
Granger also attached a letter, dated February 27, 2010—the day after his sentencing—which
purportedly directs Granger’s attorney to file a notice of appeal “in regards to [his] sentencing”
because he “[doesn’t] believe the outcome was fair.” 6
Although Granger does not specifically mention the doctrine, he seems to argue that
equitable tolling should apply to the claims in his § 2255 Motion. Equitable tolling is applied
sparingly. 7 The limitations period for § 2255 may be subject to equitable tolling if Granger
shows that (1) he was pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing. 8 Granger’s only suggestion that he
diligently pursued his rights is that he sent a letter to his attorney on February 27, 2010,
requesting the attorney to file an appeal. He then waited over two and a half years, receiving no
correspondence from his attorney or any court. Finally, on August 8, 2012, he wrote a letter to
5

Motion Under 28 U.S.C. § 2255 at 2, ECF No. 1.

6

See Letter, Ex. A10 to § 2255 Mot., ECF No. 1-1.

7

Griffin v. Rogers, 399 F.3d 626, 635 (6th Cir. 2005) (citing Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990)).
8

Jones v. United States, 689 F.3d 621, 627 (6th Cir. 2012) (citing Hall v. Warden,
Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011)).
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the Clerk of Court seeking a docket sheet in his case so that he could “prepare to petition this
honorable court, by way of motion.” Although Granger asserts that he was awaiting some
decision of the Sixth Circuit, he presents no facts suggesting why he was prevented from
inquiring as to the status of his case for over two years. From the time he allegedly sent the
February 27 letter to the time he requested a docket sheet from the Clerk of Court before filing
the instant Motion, he does not allege that he attempted to contact the Sixth Circuit, this Court, or
the attorney he believed would file an appeal of his sentence even after Granger waived his right
to appeal.
Moreover, it was not reasonable in the first place for Granger to believe that his counsel
would file an appeal in his matter. Thus, his failure to pursue his rights cannot be excused.
Granger’s signed plea agreement states that he
understands that Title 18, United States Code, Section 3742 gives
him the right to appeal the sentence imposed by the Court.
Acknowledging this, defendant knowingly and voluntarily waives
his right to appeal the sentence imposed by the Court. This waiver
is made in exchange for the concessions made by the United States
in this Plea Agreement. The waiver in this paragraph does not
apply to claims relating to prosecutorial misconduct and ineffective
assistance of counsel. 9
Granger then testified at his plea colloquy that he was satisfied and understood the terms and
conditions of his plea agreement, including the waiver of his right to appeal the sentence, and
that he had signed the plea agreement freely and voluntarily. 10 He also stated that he was

9

Plea Agreement 4, United States v. Granger, No. 2:09-cr-20113-STA-1 (W.D. Tenn.
Oct. 7, 2009), ECF No. 26.
10

Tr. of Change of Plea 12:15–14:13, id., ECF No. 42 (answering that waiving his right
to appeal meant “that I can’t go back and appeal the case because I already gave up my rights”).
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satisfied with his attorney’s representation. 11 The letter Granger allegedly sent to his counsel
does not reference prosecutorial misconduct or ineffective assistance of counsel, stating only that
he did not believe that his sentencing was fair. But Granger waived his appeal. Granger failed to
diligently pursue his rights, and he has not shown an extraordinary circumstance that stood in his
way to prevent timely filing of his § 2255 Motion.
II. Appeal Issues
The district court must evaluate the appealability of its decision denying a § 2255 motion
and issue a certificate of appealability “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 12 No § 2255 movant may appeal without this certificate,
which must indicate the specific issue(s) that satisfy the required showing. 13 A movant makes a
“substantial showing” when he demonstrates that “reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further.” 14 A certificate
of appealability does not require a showing that the appeal will succeed, 15 but courts should not
issue a certificate as a matter of course. 16 Granger’s § 2255 Motion is clearly time-barred, and
he is not entitled to equitable tolling. Therefore, the Court DENIES a certificate of appealability.

11

Id. 4:19–5:4.

12

28 U.S.C. § 2253(a), (c)(2); see also Fed. R. App. P. 22(b).

13

28 U.S.C. § 2253(c)(2)–(3).

14

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks and citation
omitted); see also Henley v. Bell, 308 F. App’x 989, 990 (6th Cir. 2009) (per curiam) (same).
15

Miller-El, 537 U.S. at 337.

16

Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005).
6

The Prison Litigation Reform Act of 1994 does not apply to appeals of orders denying §
2255 motions. 17 Rather, to appeal in forma pauperis in a § 2255 case, and thereby avoid the
appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must obtain pauper
status in accordance with Federal Rule of Appellate Procedure 24(a). 18 Rule 24(a) provides that
a party seeking pauper status on appeal must first file a motion in the district court, along with a
supporting affidavit. 19 But Rule 24(a) also provides that if the district court certifies that an
appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis,
the prisoner must file his motion to proceed in forma pauperis in the appellate court. 20 In this
case, for the same reasons the Court denies a certificate of appealability, the Court determines
that any appeal would not be taken in good faith. It is therefore CERTIFIED, in accordance with
Federal Rule of Appellate Procedure 24(a), that any appeal in this matter would not be taken in
good faith. Leave to appeal in forma pauperis is DENIED. 21
CONCLUSION
Granger’s § 2255 Motion is time-barred by 28 U.S.C. § 2255(f)(1). He is not entitled to
equitable tolling because he did not diligently pursue his rights and because no extraordinary
circumstance stood in the way to prevent timely filing. The letter Granger allegedly sent to his

17

Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997).

18

Id. at 952.

19

Fed. R. App. P. 24(a)(1).

20

See Fed. R. App. P. 24(a)(4)–(5).

21

If the Movant files a notice of appeal, he must also pay the full $505 appellate filing
fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit
Court of Appeals within 30 days.
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counsel was followed by two and a half years of inaction, even while Granger knew that he had
freely and voluntarily waived his right to appeal. Granger’s § 2255 Motion is DENIED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
HON. S. THOMAS ANDERSON
UNITED STATES DISTRICT COURT
Date: August 3, 2015.

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