Grossi v. USA
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE: Affirming and Adopting 9 Report and Recommendation on Motion to Vacate, Set Aside or Correct Sentence (2255) ; Denying 1 Motion to Vacate filed by Daniel Grossi; Overrulng Petitioner's Objections to R/R; and Dismissing civil action with PREJUDICE. Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 4/10/15. (copy to petitioner by cert. mail)(soa) (Additional attachment(s) added on 4/10/2015: # 1 Certified Mail Return Receipt) (soa).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:14CV64
(Criminal Action No. 5:09CR41-01)
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
In May 2014, the pro se1 petitioner filed a motion to vacate
First, the petitioner claims that his motion is timely
governmental action, as well as the holding under Alleyne v. United
States, 133 S. Ct. 2151 (2013).
Second, he believes that the
government withheld exculpatory and impeachment evidence before his
Third, he contends that the government and Court
committed reversible error, wherein he names several decisions of
the Supreme Court of the United States.
Fourth, the petitioner
“Pro se” describes a person who represents himself in a
court proceeding without the assistance of a lawyer. Black’s Law
Dictionary 1416 (10th ed. 2014).
The petitioner pleaded guilty to conspiracy to distribute
500 grams or more of cocaine hydrochloride in November 2009, and
received a sentence of 120 months of imprisonment and four years
of supervised release. He did not appeal his sentence.
argues he received ineffective assistance of counsel.
the petitioner requests that (1) he receive either a new trial or
a more favorable plea agreement, (2) the government provide all
exculpatory evidence, (3) he be appointed new counsel, and (4) he
be resentenced to a term of 60 months.
United States Magistrate Judge James E. Seibert then entered
a report and recommendation.
ECF No. 9.
In that recommendation,
he recommended denying the petitioner’s § 2255 motion as untimely
and dismissing the case with prejudice. The magistrate judge first
found that the petitioner’s motion is untimely.
The holding in
United States v. Sosa, 364 F.3d 507 (4th Cir. 2004), requires that
a court provide a petitioner notice if it intends to sua sponte
dismiss a motion based on an affirmative defense the Court raises.
The magistrate judge notes, however, that Sosa also stated that
“district courts could dispense with notice if it is ‘indisputably
clear’ that the motion is untimely and cannot be salvaged through
365 F.3d 507, 511 (4th Cir. 2004).
As to the motion at
issue, the magistrate judge found that it is clearly untimely.
petitioner had until December 3, 2010 to timely file a § 2255
motion. In this case, the petitioner filed his motion almost three
and a half years too late.
As to the petitioner’s claims of
timeliness under Alleyne, the magistrate judge found that such an
applicable to cases on collateral review.
As to the petitioner’s
request for equitable tolling, the magistrate judge determined that
the petitioner proffers no evidence about what materials the
government did not disclose to him, or what significance those
items of evidence would have had.
Finally, the magistrate judge
found that the petitioner did not meet his burden regarding his due
The petitioner later filed objections, labeled as a reply.
Criminal Action 5:09CR41-01 at ECF No. 80.
In his objections, the
petitioner first reasserts his initial arguments.
attempts to list some of the evidence that he argues would have
been material if he received it.
He does note that if he had
effective counsel and received all the allegedly withheld evidence,
then he may have sought a trial rather than agree to his plea
The petitioner also cites to numerous Supreme Court
decisions throughout his objection, many of which do not apply.
For the reasons set forth below, the magistrate judge’s report
and recommendation is adopted.
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made.
Because the plaintiff filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo.
As indicated earlier, the petitioner’s judgment of conviction
was entered on November 19, 2009. The petitioner also did not file
an appeal of that conviction, meaning his conviction became final
on December 3, 2009.
The primary issue then is whether the
petitioner’s § 2255 motion is untimely. The petitioner’s arguments
relate to reasons why his § 2255 motion should be considered
timely, or why equitable tolling should apply. The petitioner also
makes arguments as to why his sentence should be vacated or at
least modified in both his initial motion and his objections to the
report and recommendation.
The issue of timeliness and the
petitioner’s additional arguments are discussed below in the order
Timeliness of a § 2255 Motion
A one-year statute of limitations period applies to motions
under § 2255.
28 U.S.C. § 2255(f) (2012).
That limitation period
begins to run from the latest of four dates, which are the
(1) the date on which the judgment of conviction becomes
(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
(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;
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f)(1-4) (2012).
Generally, a petitioner must be
given notice before a district court sua sponte dismisses his or
her motion based on affirmative defenses that the Court raises.
Hill v. Braxton, 227 F.3d 701, 706 (4th Cir. 2002).
may be unnecessary, however, “if it is ‘indisputably clear’ that
the motion is untimely and cannot be salvaged through tolling.”
United States v. Sosa, 364 F.3d 507, 511 (4th Cir. 2004) (quoting
Hill, 227 F.3d at 707).
In this civil action, the petitioner
thoroughly addresses the issues of timeliness and asserts numerous
explanations as to why his motion is timely. This Court finds that
notice is unnecessary because, as explained below, the petitioner’s
motion is clearly untimely.
As quoted above, subsection one of § 2255(f) provides that the
limitation period begins to run from “the date on which the
judgment of conviction becomes final.”
The Supreme Court of the
United States held that “a judgment of conviction becomes final
contesting the appellate court’s affirmation of the conviction.”
Clay v. United States, 537 U.S. 522, 525 (2003).
judgment of conviction became final on December 3, 2009.
means he had until December 10, 2010 to file his § 2255 motion.
The petitioner, however, filed his current motion on May 21, 2014.
Clearly, under § 2255(f)(1), the petitioner’s motion is untimely.
The same conclusion is reached when applying the petitioner’s
claims to the remaining subsections of § 2255(f).
permits a court to essentially equitably toll the limitation
period, assuming certain facts exist.
Under subsection two, the
limitation period runs from the date that a governmental action,
which impeded the making of a § 2255 motion, is removed.
assumes that the petitioner was prevented from making such motion
by the governmental action. Regarding the governmental action, the
petitioner claims that the government withheld exculpatory and
impeachment evidence and thus, he agreed to plea based on evidence
that was unavailable at that time.
Therefore, the petitioner
asserts that his plea agreement was made neither knowingly nor
As stated in Sosa, “equitable tolling is available
only in ‘those rare instances where -- due to circumstances
external to the party’s own conduct -- it would be unconscionable
to enforce the limitation period against the party and gross
injustice would result.’”
364 F.3d at 512 (quoting Rouse v. Lee,
339 F.3d 238, 246 (4th Cir. 2003) (en banc)).
whether equitable tolling should apply, its application should be
determined on a case-by-case basis.
Holland v. Florida, 560 U.S.
631, 650 (2010) (internal citations omitted).
Here, under subsection two, the petitioner must demonstrate
that governmental action impeded him from filing his § 2255 motion.
The petitioner, however, fails to do so.
filings are liberally construed.
It is true that pro se
Haines v. Kerner, 404 U.S. 519
“[u]nsupported, conclusory allegations do not entitle a habeas
petitioner to an evidentiary hearing.”
Nickerson v. Lee, 971 F.2d
1125, 1136 (4th Cir. 1992); see Zettlemoyer v. Fulcomer, 923 F.2d
allegations do not provide sufficient ground . . . to require an
Further, “[p]rinciples requiring generous
construction of pro se [filings] are not, however, without limits.”
Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985).
petitioner’s motion and his objections, he consistently asserts
resulted in his innocence.
Simply stating what evidence was
allegedly withheld, and nothing more, is insufficient to prove that
the government impeded him from filing his motion sooner.
petitioner only makes conclusory allegations that the government
withheld information from him, but then does not provide what
additional witnesses might have said, how their testimony would
have disproved the criminal allegations, or what significance the
allegedly withheld documents would have had.
As the magistrate
judge correctly points out, the petitioner only states that the
government withheld certain evidence from him, and nothing more.
Other than that, the petitioner does not specifically describe what
governmental action prevented him from filing his § 2255 motion
sooner. Therefore, it is clear that no extraordinary circumstances
beyond his control exist, meaning that equitable tolling should not
As to subsection three of § 2255(f), the petitioner claims in
his motion and objections that Alleyne v. United States, 133 S. Ct.
2151, 2155 (2013), applies retroactively, and thus makes his motion
In Alleyne, the Supreme Court of the United States held
Any fact that, by law, increases the penalty for a crime
is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt. [internal citation
Mandatory minimum sentences increase the
penalty for a crime. It follows, then, that any fact
that increases the mandatory minimum is an ‘element’ that
must be submitted to the jury.
133 S. Ct. at 2155.
That holding in Alleyne, however, does not
See In re Kemper, 735 F.3d 211 (5th Cir.
2013); In re Payne, 733 F.3d 1027 (10th Cir. 2013); Simpson v.
United States, 721 F.3d 875 (7th Cir. 2013).
The petitioner also
cites to Apprendi v. New Jersey, 530 U.S. 466 (2000), claiming that
its holding, like that of Alleyne, is retroactive.
the Court held that “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.”
530 U.S. at 490.
The holding of Apprendi, however, has not been deemed retroactive,
as indicated by the fact that “other rules based on Apprendi do not
apply retroactively on collateral review.”
Simpson, 721 F.3d at
petitioner’s reliance on those holdings would still be misguided
even if they did retroactively apply.
The applicable sentencing
guideline range for the petitioner was 188 to 235 months.
Criminal Action No. 5:09CR41-01.
However, the petitioner received
a sentence of 120 months, thus failing to implicate the holdings of
either Alleyne or Apprendi.
Therefore, the petitioner’s arguments
in both his motion and objections about subsection three lack
Regarding subsection four of § 2255(f), the petitioner claims
that he has shown due diligence in filing his § 2255 motion.
his motion, he claims that he has proven due diligence by pursuing
his rights and that the government’s withholding of exculpatory
evidence impeded his pursuit of those rights.
However, as the
magistrate judge correctly points out, the petitioner offers no
proof that either demonstrates his due diligence in this civil
action or why now he is suddenly aware that exculpatory information
was withheld from him.
Therefore, the petitioner’s motion is
Ineffective Assistance of Counsel
In his motion, but even more so in his objections, the
petitioner argues that his counsel was ineffective. He claims that
his counsel “pressured him into pleading guilty[,] failed to
explain the terms of the plea agreement including the appeal waiver
[,] and promised Grossi that he would be sentenced to 5 years [or]
Criminal Action No. 5:09CR41 at ECF No. 80.
that, the petitioner again argues in his objections that he did not
knowingly and voluntarily agree to the terms of his plea agreement.
The record, however, contradicts the petitioner’s allegations.
At his plea hearing, the petitioner stated that his attorney
adequately represented him and that the petitioner was guilty. Id.
at ECF No. 50. Further, the Court explained to the petitioner that
the plea agreement contained a waiver of appellate rights.
The record shows that the petitioner has not proffered any proof
Washington, 466 U.S. 668, 687-88 (1984). The holding in Strickland
requires that the petitioner “demonstrate both that his counsel’s
performance fell below the standard of objective reasonableness and
that the deficient performance was prejudicial to his defense.”
United States v. Mason, 774 F.3d 824, 828 (4th Cir. 2014) (citing
Strickland, 466 U.S. at 687-88).
Other than his conclusory
allegations, the petitioner proffers insufficient evidence and
facts that satisfy the above standard. Therefore, the petitioner’s
claim as to ineffective assistance of counsel also lacks merit.
Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 and Section
2255 cases provides that the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to the applicant” in such cases. This memorandum opinion and order
is a final order adverse to the applicant in a case in which 28
appealability to take an appeal.
certificate of appealability in this matter.
Court finds that the petitioner has not made a “substantial showing
A prisoner satisfies this standard by demonstrating
that reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or wrong
and that any dispositive procedural ruling by the district court is
See Miller-El v. Cockrell, 537 U.S. 322, 336-
Upon review of the record, this Court finds that the
petitioner has not made the requisite showing.
The petitioner may, however, request a circuit
judge of the United States Court of Appeals for the Fourth Circuit
to issue the certificate of appealability.
For the reasons stated, the magistrate judge’s report and
petitioner’s motion under 28 U.S.C. § 2255 is DENIED. Further, the
petitioner’s objections are OVERRULED and the case is DISMISSED
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
April 10, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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