United States District Court, W.D. Kentucky, Louisville
JAMES R. TISCHENDORF, Movant/Defendant,
UNITED STATES OF AMERICA, Respondent/Plaintiff.
MEMORANDUM OPINION AND ORDER
JOHN G. HEYBURN, II, District Judge.
Movant James R. Tischendorf filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (DN 48). The Court reviewed the motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Upon review, the Court directed Tischendorf to show cause why the motion should not be denied as barred by the statute of limitations (DN 49). Tischendorf responded to the Court's Show Cause Order (DN 50). Upon review, for the reasons set forth below, the Court will deny the motion as untimely.
Tischendorf entered into a plea agreement on August 27, 2010, pleading guilty to Counts 1 and 2 of the indictment-attempt to coerce or entice a minor to engage in sexual activity and transfer of obscene material to a minor. The Judgment and Commitment Order was entered on September 27, 2010. The Court sentenced Tischendorf to 120 months on each count to run concurrently and supervised release for ten years on Count 1 and three years on Count 2 also to run concurrently. Tischendorf did not file an appeal of his conviction. He filed the instant § 2255 motion on June 19, 2013.
Section 2255 provides for a one-year limitations period, which 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.
See § 2255(f).
When a § 2255 movant does not pursue a direct appeal to the court of appeals, his conviction becomes final on the date on which the time for filing such appeal expires. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004). Judgment was entered in this case on September 27, 2010. The judgment became final on October 11, 2010, upon the expiration of the fourteen-day period for filing a notice of appeal. See Fed. R. App. P. 4(b)(1)(A). Tischendorf had one year, or until October 11, 2011, in which to timely file a motion under § 2255. Accordingly, Tischendorf's motion was filed more than one year and eight months after the statute of limitations expired. In response to the Show Cause Order, Tischendorf acknowledges that he did not file his motion within the statute of limitations. Under § 2255(f), therefore, Tischendorf's motion is time-barred and subject to summary dismissal.
Because § 2255's one-year statute of limitations is not jurisdictional, however, it is subject to equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001). "Typically, equitable tolling applies only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.'" Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000)). To qualify for such relief, a prisoner must show that he has pursued his rights diligently and that extraordinary circumstances impeded his efforts. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Dunlap, 250 F.3d at 1008. "Absent compelling equitable considerations, a court should not extend limitations by even a single day." Graham-Humphreys, 209 F.3d at 561. "The [movant] bears the burden of demonstrating that he is entitled to equitable tolling." McClendon v. Sherman, 329 F.3d 490, 494-95 (6th Cir. 2003) (citing Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002)).
In response to the Show Cause Order, Tischendorf argues that he is entitled to equitable tolling because he is actually innocent of the crimes of which he was convicted. The statute of limitations under § 2255 may be equitably tolled when the movant makes a credible claim of actual innocence based on new reliable evidence. Schlup v. Delo, 513 U.S. 298, 317 (1995); see also Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005). Actual innocence means factual innocence, not mere legal insufficiency or legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998); Connolly v. Howes, 304 F.Appx. 412, 417 (6th Cir. 2008); Souter, 395 F.3d at 590. To make out a credible claim of actual innocence, Tischendorf is required to support his allegations of federal constitutional error with "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup v. Delo, 513 U.S. at 324. Without any new reliable evidence and facts showing actual innocence, even the existence of a ...