United States District Court, W.D. Kentucky, Louisville
THOMAS B. RUSSELL, Senior District Judge.
Movant Jason Goldsmith filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (DN 56). The Court reviewed the motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts and directed Goldsmith to show cause why his motion should not be denied as barred by the applicable statute of limitations. Goldsmith filed two responses (DNs 60 and 61) which appear to be identical in substance. Upon review, for the reasons set forth below, the Court will dismiss the petition as untimely.
Goldsmith pleaded guilty and was convicted on March 28, 2006, to six counts- manufacture of methamphetamine and aid and abet same; possession of chemicals with intent to manufacture methamphetamine and aid and abet same; attempt to manufacture 50 grams or more of methamphetamine and aid and abet same; possession of equipment, chemicals, and materials used to manufacture methamphetamine and aid and abet same; endangering human life while manufacturing methamphetamine and aid and abet same; and possession with intent to distribute methamphetamine. The Court sentenced Goldsmith to 219 months as to each of four counts and 120 months as to the remaining two, to be served concurrently, for a total term of 219 months. Goldsmith did not file an appeal of his conviction. He filed the instant § 2255 motion on March 6, 2014.
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 March 28, 2006. The judgment became final on April 11, 2006, upon the expiration of the ten-day period for filing a notice of appeal. Goldsmith had one year, or until April 11, 2007, in which to timely file a motion under § 2255. Accordingly, Goldsmith's motion was filed almost seven years after the statute of limitations expired. Under § 2255(f), therefore, Goldsmith's motion is time-barred and subject to dismissal.
Goldsmith argues in response to the Show Cause Order that, under § 2255(f)(4), his motion is not time-barred because he did not discover the facts supporting his claim until the date of the Supreme Court's decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). In Alleyne, the Supreme Court held that "[a]ny 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." Alleyne, 133 S.Ct. at 2155. However, the Sixth Circuit has held that the rule in Alleyne does not apply retroactively to cases on collateral review. In re Mazzio, 756 F.3d 487, 491 (6th Cir. 2014); see also Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013). Since Alleyne does not apply retroactively to Goldsmith's § 2255 motion, it does not extend the statute of limitations. See Wright v. United States, No. 5:08CR0463, 2014 U.S. Dist. LEXIS 133428, at *5 (N.D. Ohio Sept. 22, 2014) ("Since Alleyne does not affect the fundamental fairness or accuracy of a criminal proceeding, and is not retroactively applicable, [the § 2255 motion] is time-barred."); United States v. Coles, No. 08-20351, 2014 U.S. Dist. LEXIS 67024, at *2 (E.D. Mich. May 15, 2014) (finding that because Alleyne does not apply retroactively to the movant's § 2255 motion, the motion was untimely); United States v. Eziolisa, No. 3:10-cr-039, 2013 U.S. Dist. LEXIS 102150, at *8 (S.D. Ohio July 22, 2013) (" Alleyne does not apply retroactively to [this] case so as to extend the statute of limitations.").
Because § 2255's one-year statute of limitations is not jurisdictional, 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)). A movant "is entitled to equitable tolling' only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). "Absent compelling equitable considerations, a court should not extend limitations by even a single day." ...