Boswell v. USA

Filing 5

MEMORANDUM OPINION AND ORDER: Petitioner is GRANTED 14 days from the date of this order to explain why this case is not barred by the one-year statute of limitations or why the statute of limitations should be tolled on equitable grounds. The motion to proceed in forma pauperis [Doc. 4 ] is DENIED as moot. (Ordered by Judge Ed Kinkeade on 1/12/2017) (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

ROBBIE M. BOSWELL, # 38634-177 §
Petitioner,
§
§
v.
§
§
UNITED STATES OF AMERICA,
§
Respondent.
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CIVIL NO. 3:16-CV-1810-K
(Criminal No. 3:08-CR-326-K-1)

MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner’s pro se motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. For the reasons that follow, Petitioner is GRANTED
14 days from the date of this order to respond regarding the one-year statute of
limitations, otherwise the section 2255 motion will be summarily dismissed as time
barred.
I. BACKGROUND
In 2009, Petitioner pled guilty to possession with intent to distribute and
distribution of a controlled substance and possession of a firearm in furtherance of a
drug trafficking crime, and was sentenced to 120 months in prison (60 months on each
count to run consecutively). Crim. Doc. 27. She did not appeal. And in 2015, the
Court denied her motion to reduce sentence under the 2014 Drug Guideline
Amendments. Crim. Doc. 32.
On June 27, 2016, Petitioner filed this section 2255 motion, challenging her

sentence as unconstitutional under Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551,
2563 (2015), which held that imposing an increased sentence under the residual clause
of the ACCA, 28 U.S.C. § 924(e), violates the Constitution’s guarantee of due process.
Doc. 2 at 4. Regarding the timelines of her section 2255 motion, Petitioner relies on
Johnson. Doc. 2 at 12.
II. ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes
a one-year statute of limitations for federal inmates seeking post-conviction relief under
28 U.S.C. § 2255, which the Court may consider sua sponte after providing notice and
opportunity to respond. See 28 U.S.C. § 2255(f); Day v. McDonough, 547 U.S. 198,
209-210 (2006) (addressing a similar provision applicable to state habeas petitions
under 28 U.S.C. § 2254). As set out below, the Court grants Petitioner an opportunity
to respond to the statute of limitations ruling.
A. Limitations
Petitioner apparently relies on 28 U.S.C. § 2255(f)(3) and Johnson to overcome
the one-year statute of limitations, since otherwise, the section 2255 motion is clearly
untimely under section 2255(f)(1). Over six years elapsed between December 2009,
when Petitioner’s conviction first became, final and her initiation of this action.

See

Clay v. United States, 537 U.S. 522, 525 (2003) (a judgment becomes final under
section 2255(f)(1) when the applicable period for seeking direct review of a conviction
has expired).

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Petitioner’s reliance on section 2255(f)(3) and Johnson to overcome the
limitations bar, however, is misplaced. Section 2255(f)(3) provides that the one-year
limitations period runs from “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.” And
while the Supreme Court has found its holding in Johnson retroactively applicable to
cases on collateral review, United States v. Welch, ___ U.S. ___, 136 S. Ct. 1257 (2016),
Johnson has no bearing on Petitioner’s case because her sentence was not increased
under the ACCA’s residual clause -- the only provision that Johnson found to be
unconstitutional. See Johnson, ___ U.S. ___, 135 S. Ct. at 2563 (calling into question
only the residual clause of the ACCA). Rather the Presentence Report (PSR) (which
was adopted without change at sentencing) calculated Petitioner’s base offense level
for drug possession under U.S.S.G. § 2D1.1, and for possession of a firearm in
furtherance of a drug trafficking crime under U.S.S.G. § 2K2.4(b). See Crim. Doc. 31
at 9-10, PSR ¶¶ 27, 34; Crim. Doc. 31-2 at 1, Statement of Reasons.

Moreover,

because Petitioner pled guilty under 18 U.S.C. § 924(c)(1)(A) to possession of a firearm
in furtherance of a drug trafficking crime – not use and carry of a firearm during a
crime of violence – the definition of crime of violence found at 18 U.S.C. § 924(c)(3)
was not at issue. Crim. Doc. 31 at 10, PSR ¶ 34.
Additionally, even assuming the Supreme Court finds Johnson retroactively
applicable to the career offender provision of the Sentencing Guidelines, see Beckles v.

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United States, 616 Fed. Appx. 415 (11th Cir. 2015), cert. granted, ___ U.S. ___, 136 S.
Ct. 2510 (2016), Petitioner was not sentenced as a career offender as previously noted.
Thus, her claims are not premised on a penal statute or Sentencing Guidelines provision
that contains or incorporates any clauses resembling the ones found unconstitutional
in Johnson. Section 2255(f)(3) is, therefore, not applicable in this case.
Likewise, sections 2255(f)(2) and (4) are inapplicable in this case. Petitioner
does not appear to base her claims on a government created impediment, and the facts
supporting her ground for relief should have been known prior to the date on which
her conviction became final.
Consequently, the section 2255 motion is clearly outside the one-year statute of
limitations absent equitable tolling.
B. Equitable Tolling
Petitioner posits no facts from which the Court can find that equitable tolling
applies. See Lawrence v. Florida, 549 U.S. 327, 336 (2007) (equitable tolling requires a
petitioner to show “(1) that he has been pursuing her rights diligently, and (2) that
some extraordinary circumstance stood in her way and prevented timely filing”); see also
Menominee Indian Tribe of Wis. v. United States, --- U.S. ---, 136 S. Ct. 750, 755-756
(2016). Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999) (“[E]quity is not intended
for those who sleep on their rights.”) (quotation and quoted case omitted). Neither a
prisoner’s unfamiliarity with the law nor her pro se status rises to the level of a rare or
exceptional circumstance that would warrant equitable tolling. See United States v. Petty,

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530 F.3d 361, 365-366 (5th Cir. 2008) (lack of legal training, ignorance of the law,
and pro se status are insufficient to equitably toll the statute of limitations).
Accordingly, Petitioner cannot carry her burden of establishing that equitable tolling is
warranted in this case. Id. at 365.
III.
Petitioner is GRANTED 14 days from the date of this order to explain why this
case is not barred by the one-year statute of limitations or why the statute of limitations
should be tolled on equitable grounds. Otherwise, the motion to vacate sentence under
28 U.S.C. § 2255 will be summarily dismissed with prejudice as barred by the one-year
statute of limitations.
The motion to proceed in forma pauperis [Doc. 4] is DENIED as moot. No
filing fee is due for a motion to vacate sentence under 28 U.S.C. § 2255.
SO ORDERED.
Signed January 12th, 2017.

____________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE

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