Movant, Larry Briggs, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (DN 113). On preliminary consideration under Rule 4 of the Rules Governing Section 2255 Cases in the United States District Courts, the Court directed Movant to show cause why his motion should not be denied and his action dismissed as barred by the applicable statute of limitations.
On August 8, 2009, a Judgment and Commitment Order sentenced Movant to 180 months total for the three counts of the indictment of which he was found guilty by a jury (DN 97). Movant appealed, and the Sixth Circuit Court of Appeals issued its mandate of its decision affirming on July 14, 2011. On February 8, 2013, Movant filed the instant § 2255 motion.*fn1
Under § 2255, a one-year limitation period applies. The statute provides as follows:
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--(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 or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(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.
28 U.S.C. § 2255(f). "When a federal criminal defendant appeals to the court of appeals, the judgment of conviction becomes final for § 2255 purposes upon the expiration of the ninety-day period in which the defendant could have petitioned for certiorari to the Supreme Court, even when no certiorari petition is filed." Johnson v. United States, 457 F. App'x 462, 464 (6th Cir. 2012). Thus, Movant's conviction became final ninety days after July 14, 2011, or October 12, 2011. Movant, therefore, had until October 12, 2012, to file his § 2255 motion.
In his response to the show-cause order, Movant states that he is pro se, incarcerated, and without sufficient funds to hire an attorney. He further states that he is unable to write very well and has required assistance from the prison law library clerk, who had to type and read to Movant the § 2255 motion and the response to the show-cause order before those documents could be filed. That response further states that Movant was aware of what happened at his trial, but became aware of the prosecutorial misconduct regarding fingerprint evidence after his trial and conviction. The response also states that the law library clerk who is assisting Movant first became available to Movant in October 2012. Before then, Movant had no knowledge of how to obtain relief through a § 2255 motion or of § 2255's one-year limitations period. Movant also asserts that the United States would not be prejudiced, that he is innocent of the charges of conviction, and that denial of his § 2255 motion would result in a miscarriage of justice.
Although the one-year statute-of-limitations period applicable to 28 U.S.C. § 2255 motions is subject to equitable tolling Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004), the Sixth Circuit has repeatedly made clear its view that "equitable tolling relief should be granted only sparingly." Amini v. Oberlin College, 259 F.3d 493, 500 (6th Cir. 2001). "Typically, equitable tolling applies only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond the litigant's control." Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000). "Absent compelling equitable considerations, a court should not extend limitations by even a single day." Id. at 561. In determining whether to toll the statute of limitations, this Court considers whether Movant lacked notice or constructive knowledge of the filing requirement; whether Movant was diligent in pursuing his rights; whether there would be no prejudice to the respondent; and whether it was reasonable for Movant to remain ignorant of the legal requirement for filing his claim. Allen v. Yukins, 366 F.3d at 401.
Movant has pointed to no circumstances beyond his control which would support equitable tolling. Ignorance of the law is not grounds for equitable tolling. Johnson v. United States, 544 U.S. 295, 311 (2005); Allen v. Yukins, 366 F.3d at 403. Similarly, lack of legal assistance does not constitute "extraordinary circumstances" justifying equitable tolling. See Holloway v. Jones, 166 F. Supp. 2d 1185, 1189 (E.D. Mich. 2001); see also Fisher v. Johnson, 174 F.3d 710, 714 n.13 (5th Cir. 1999) ("ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse [late] filing.")
The statute of limitations in 28 U.S.C. § 2255(f) may be equitably tolled when a habeas petitioner makes a credible claim of actual innocence based on new reliable evidence. Connolly v. Howes, 304 F. App'x 412, 417 (6th Cir. 2008); Knickerbocker v. Wolfenbarger, 212 F. App'x 426, 431 (6th Cir. 2007); Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005). There is a stringent standard for establishing a credible claim of actual innocence. Actual innocence means factual innocence, not mere legal insufficiency or legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998); Schlup v. Delo, 513 U.S. 298, 321 (1995); Connolly, 304 F. App'x at 417; Souter, 395 F.3d at 590.
To make out a credible claim of actual innocence, a movant is required to support his claim of federal constitutional error with new reliable evidence -- exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was unknown or unavailable at the time of his conviction and sentencing. Schlup, 513 U.S. at 324; Souter, 395 F.3d at 590. Without new reliable evidence and facts showing actual innocence, even the existence of a meritorious claim of a federal constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a habeas claim that is time-barred by the statute of limitations. Schlup, 513 U.S. at 316; Nelloms v. Jackson, 129 F. App'x 933, 937 (6th Cir. 2005). The actual innocence equitable tolling exception is rare and may only be applied in extraordinary cases involving factual innocence. Schlup, 513 U.S. at 321; Souter, 395 F.3d at 590.
Here, Movant point to no new reliable evidence to support his claim of actual innocence. For the foregoing reasons, the Court will by separate ...