Virginia Lawyers Weekly//July 7, 2023
Virginia Lawyers Weekly//July 7, 2023//
Where a petitioner filed his § 2255 motion more than a year after the conviction became final, and there was no sufficient excuse for the untimely filing, it was dismissed.
On Oct. 15, 2019, a federal grand jury returned a two-count indictment against Justin Travis Taylor. On Jan. 2, 2020, he pled guilty to Count Two, charging him with receipt of child pornography. On July 28, 2020, the court sentenced the petitioner to 72 months imprisonment followed by 20 years of supervised release.
On March 3, 2022, petitioner filed a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1). Petitioner subsequently filed a motion for compassionate release through counsel. On Feb. 2, 2023, the court denied petitioner’s motion by written order. He timely noted his appeal, and the matter is currently pending in the Fourth Circuit.
On March 7, 2023, pursuant to 28 U.S.C. § 2255 petitioner filed the instant motion asking that his sentence be vacated, set aside or corrected on the grounds that his counsel was ineffective, his mental health was not considered at sentencing, he was denied the right to appeal and his plea was coerced.
A petitioner’s motion pursuant to 28 U.S.C. § 2255 must be filed within a year after “the date which the judgment of conviction became final.” Here, judgment was entered on July 29, 2020. Accordingly, petitioner had 14 days after entry of the judgment to file a direct appeal, but he did not appeal his sentence to the Fourth Circuit.
Petitioner’s sentence thus became final on Aug. 12, 2020. Petitioner’s instant motion became time-barred on Aug. 12, 2021, one year later. The petitioner filed the instant motion on March 7, 2023, approximately one year and seven months after the expiration of the limitations period, and is therefore, untimely.
However, a petitioner’s § 2255 untimely motion may be allowed if there has been a substantive change in the law. Here, however, petitioner has not claimed the benefit of any subsequently decided Supreme Court case that established a new right, nor has he alleged that the government created an impediment blocking his action, wrongfully or otherwise.
Furthermore, the court may excuse petitioner’s procedural default if it finds that petitioner is innocent. However, in this case, petitioner has not argued that he is innocent. Simply put, the filing of petitioner’s motion is untimely.
Outside of § 2255(t), the court, at its discretion, may still find an otherwise time-barred motion appropriate through equitable tolling if the petitioner presents “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” Here, petitioner argues that he “did not know [he] could appeal and raise issues” because he “had [his] right to direct appeal withheld” and the “plea was … not fully explained to [his] understanding.”
However, a lack of knowledge of one’s own legal recourses does not constitute extraordinary circumstances beyond one’s control. Even ineffective assistance of counsel does not generally rise to the level of extraordinary circumstances. Therefore, the petitioner’s claimed lack of knowledge cannot support the application of equitable tolling.
The petitioner did waive his right to a direct appeal, however, this waiver does not justify a complete lack of knowledge as to the petitioner’s options. The plea agreement, signed by petitioner, states he has been read the agreement and understands it. Additionally, during sentencing, the court informed the petitioner that his waiver of direct appeal does not encompass issues that implicate a constitutional error in the plea agreement or actual innocence.
Moreover, in recognition of these rights, the petitioner filed a motion pursuant to 18 U.S.C. § 3582(c)(1) on March 3, 2020. Notably, the petitioner did not file a § 2255 motion within a similar timeframe. The instant § 2255 motion was filed a year after the § 3582 motion. Accordingly, lack of knowledge, without more, is not sufficient to warrant equitable tolling.
Petitioner’s § 2255 motion denied.
Taylor v. United States, Case No. 4:23-cv-31, June 16, 2023. EDVA at Newport News (Jackson). VLW 023-3-354. 7 pp.