United States District Court, W.D. Kentucky, Louisville
B. Russell, Senior Judge.
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
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release was revoked by Order entered April 15, 2004, and she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).
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
(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
(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).
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,
expired one year later on April 29, 2005. Because Movant did
not file her § 2255 motion until May 26, 2016,
motion is time-barred under § 2255(f)(1).
§ 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
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 ...