Shaw v. USA

Filing 11

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Kenneth Wayne Shaw, Jr. It is recommended that the above-styled motion for relief under 28 USC 2255 be denied and that this case be dismissed with prejudice. It is further recommended that a certificate of appealability be denied. Signed by Magistrate Judge Don D. Bush on 7/2/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
KENNETH WAYNE SHAW, JR., #15934-078 §
VS.

§

UNITED STATES OF AMERICA

CIVIL ACTION NO. 4:12cv83
CRIMINAL ACTION NO. 4:08cr188

§

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Movant Kenneth Wayne Shaw, Jr., a prisoner confined at FCI Pollock in Pollock, Louisiana,
proceeding pro se, filed the above-styled and numbered motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255. The motion was referred for findings of fact, conclusions
of law and recommendations for the disposition of the case.
Background
On January 26, 2010, after pleading guilty, the Court sentenced Movant to 188 months of
imprisonment for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g)(1). The United States Court of Appeals for the Fifth Circuit affirmed Movant’s conviction
and sentence on September 29, 2010.
The present motion was filed on February 8, 2012. In his motion, Movant claims that he is
entitled to relief because his status as an “armed career criminal” is incorrect and because both his
trial and appellate counsel were ineffective.
Antiterrorism and Effective Death Penalty Act of 1996
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
was signed into law. A one year statute of limitations was enacted for motions to vacate, set aside

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or correct a sentence pursuant to 28 U.S.C. § 2255. In general, a movant for collateral relief has one
year from “the date on which the judgment became final” to file a motion challenging his conviction.
A conviction is final under § 2255 when a defendant’s options for further direct review are
foreclosed. United States v. Gamble, 308 F.3d 536, 537 (5th Cir. 2000); United States v. Thomas,
203 F.3d 350, 352 (5th Cir. 2000).
In the present case, Movant’s conviction was affirmed on September 29, 2010. He did not
file a writ of certiorari in the United States Supreme Court. Thus, Movant’s conviction became final
ninety days later on December 30, 2010, the last day on which he could have filed a petition for writ
of certiorari in the United States Supreme Court. See Sup. Ct. R. 13(1) (providing that a petition for
writ of certiorari is timely when it is filed with the clerk of this Court within 90 days after entry of
the judgment”; Clay v. United States, 537 U.S. 522, 532, 123 S. Ct. 1072, 1079, 155 L. Ed.2d 88
(2003). The present § 2255 motion had to be filed within one year from the date on which the
judgment became final; thus, Movant had until December 30, 2011, in which to file his motion. It
was not filed until February 8, 2012 - forty days beyond the limitations period.
The United States Supreme Court recently confirmed that the AEDPA statute of limitation
is not a jurisdictional bar, and it is subject to equitable tolling. Holland v. Florida, 560 U.S. —, 130
S. Ct. 2549, 2560, 177 L. Ed.2d 130 (2010). “A habeas petitioner is entitled to equitable tolling only
if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.” Mathis v. Thaler, 616 F.3d 461, 474
(5th Cir. 2010) (quoting Holland, 130 S. Ct. at 2562). “Courts must consider the individual facts and
circumstances of each case in determining whether equitable tolling is appropriate.” Alexander v.
Cockrell, 294 F.3d 626, 629 (5th Cir. 20902). The petitioner bears the burden of proving that he is
entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5 th Cir. 2000).

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The Fifth Circuit has held that the district court has the power to equitably toll the limitations
period in “extraordinary circumstances.” Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir.1998).
In order to qualify for such equitable tolling, the petitioner must present “rare and exceptional
circumstances.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.1998). In making this
determination, it should be noted that the Fifth Circuit has expressly held that proceeding pro se,
illiteracy, deafness, lack of legal training, unfamiliarity with the legal process, and claims of actual
innocence are insufficient reasons to equitably toll the statute of limitations. Felder v. Johnson, 204
F.3d 168, 173 (5th Cir.2000).
As a general rule, equitable tolling has historically been limited to situations where the
petitioner “has actively pursued his judicial remedies by filing a defective proceeding during the
statutory period, or where the [petitioner] has been induced or tricked by his adversary's misconduct
into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111
S. Ct. 453, 112 L. Ed.2d 435 (1990). Furthermore, equitable tolling cannot be used to thwart the
intent of Congress in enacting the limitations period. See Davis, 158 F.3d at 811 (noting that “rare
and exceptional circumstances” are required). At the same time, the Court is aware that dismissal of
a first federal habeas petition is a “particularly serious matter, for that dismissal denies the petitioner
the protections of the Great Writ entirely, risking injury to an important interest in human liberty.”
Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293, 134 L. Ed.2d 440 (1996).

Movant filed his § 2255 motion 40 days beyond the limitations period and he has not shown
rare and exceptional circumstances entitling him to equitable tolling. Consequently, the motion
should be dismissed as time-barred.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a proceeding under
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§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, it is respectfully recommended
that this Court, nonetheless, address whether he would be entitled to a certificate of appealability.
See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule
on a certificate of appealability because “the district court that denies a [movant] relief is in the best
position to determine whether the [movant] has made a substantial showing of a denial of a
constitutional right on the issues before the court. Further briefing and argument on the very issues
the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a movant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack
v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603-04, 146 L. Ed.2d 542 (2000). In cases where
a district court rejected constitutional claims on the merits, the movant must demonstrate “that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). When a district court denies
a motion on procedural grounds without reaching the underlying constitutional claim, a COA should
issue when the movant shows, at least, that jurists of reason would find it debatable whether the
motion 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 its procedural ruling. Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial
of Movant’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented
are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37,

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123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604).
Accordingly, it is respectfully recommended that the Court find that Movant is not entitled to a
certificate of appealability as to his claims.
Recommendation
It is recommended that the above-styled motion for relief under 28 U.S.C. § 2255 be denied
and that this case be dismissed with prejudice. It is further recommended that a certificate of
appealability be denied.
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from
.

de novo review by the district judge of those findings, conclusions and recommendations and, except
on grounds of plain error, from appellate review of unobjected-to factual findings and legal
conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n, 79
F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 2nd day of July, 2012.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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