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Lawrence v. United States

United States District Court, W.D. Kentucky, Louisville

December 14, 2016

JESSICA LYNN LAWRENCE MOVANT/DEFENDANT
v.
UNITED STATES OF AMERICA RESPONDENT/PLAINTIFF

          MEMORANDUM OPINION

          Thomas B. Russell, Senior Judge.

         Before the Court is Movant Jessica Lynn Lawrence's pro se motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255 (DN 64). The United States has responded to the motion (DN 73), and Movant has replied (DN 77). The § 2255 motion is currently before the Court for preliminary review pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.

         I.

         Movant is currently serving a 20-year state sentence. She states that her state time will be complete on November 3, 2020 (DN 64, p. 5). On March 5, 2015, the United States Marshal filed a detainer informing the Western Kentucky Correctional Complex that Movant is subject to a federal sentence upon her release. In the present criminal case, Movant was sentenced on July 23, 2003, to 36 months of imprisonment and 36 months of supervised release (DN 29). Movant's supervised release was revoked by Order entered April 15, 2004, and she was sentenced to 24 months of imprisonment (DNs 42 & 43). In a separate criminal action against Movant in the Western District of Kentucky, Case No. 3:04-CR-29-C-2, a Judgment and Commitment Order was entered on December 21, 2004. See Case No. 3:04-CR-29-C-2, DN 51. In that case, Movant was sentenced to 84 months of imprisonment and 36 months of supervised release. That judgment was later amended to direct that it be served concurrently with Movant's state court sentence. See Case No. 3:04-CR-29-C-2, DN 60. In her present § 2255 motion, Movant asks the Court as follows: “Please allow me to have the 24 months [run] together with the 36 month[s] probation for a total of 60 months probation or . . . dismiss the 24 months violation probation, to just [serve] the 36 months probation” (DN 64, p. 5).

         II.

         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.

28 U.S.C. § 2255(f).

         Movant's Judgment and Commitment in the present action revoking her supervised release and sentencing her to 24 months of imprisonment was entered on April 15, 2004 (DN 43). No appeal was filed. Under § 2255(f)(1), the one-year limitations period, therefore, began running on April 29, 2004, [1] and expired one year later on April 29, 2005. Because Movant did not file her § 2255 motion until May 26, 2016, [2] the motion is time-barred under § 2255(f)(1).

         Because § 2255's one-year statute of limitations is not jurisdictional, it is subject to equitable tolling. Jefferson v. United States, 730 F.3d 537, 549 (6th Cir. 2013). “Equitable tolling is used sparingly and ‘only if two requirements are met. First, the [movant] must establish that he has been pursuing his rights diligently. And second, the [movant] must show that some extraordinary circumstance stood in his way and prevented timely filing.'” Jones v. United States, 689 F.3d 621, 627 (6th Cir. 2012) (quoting Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011)). Movant has the burden of persuading the Court that she is entitled to equitable tolling. Del Bosque v. United States, 169 F. App'x 934, 936 (6th Cir. 2006); Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).

         Movant fails to set forth any facts to show that she was pursuing her rights diligently. She does not provide the Court with any efforts she made to pursue her case between the time of the judgment revoking her supervised release on April 15, 2004, until May 26, 2016, when she filed her § 2255 motion. Movant's failure to establish that she has been pursuing her rights diligently is reason enough to preclude equitable tolling. See Williams v. Warden, Chillicothe Corr. Inst., No. 1:11-CV-448, 2012 WL 1658877, at *5 (S.D. Ohio ...


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