United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
matter is pending for consideration of Defendant/Movant
Michael Osborne's motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. [Record No. 212]
For the reasons discussed below, the motion will be dismissed
November 22, 2013, Osborne pleaded guilty to one count of
conspiring to distribute oxycodone and one count of
distributing oxycodone in violation of 21 U.S.C. § 846
and § 841(a)(1). [Record Nos. 20, 99] An evidentiary
hearing was held to resolve a factual dispute over the
quantity of pills at issue. [Record No. 102] In findings
published on January 13, 2014, the undersigned found Osborne
responsible for 2, 550 oxycodone 30 milligram pills for
re-distribution during the the conspiracy. [Record No. 104]
sentencing hearing was held on February 28, 2014 [Record No.
123], with a judgment filed on March 3, 2014 [Record No.
127]. Osborne was sentenced to a 72-month term of
incarceration, followed by three years of supervised release.
Thereafter, Osborne filed a Notice of Appeal. [Record No.
13, 2015, the United States Court of Appeals for the Sixth
Circuit affirmed Osborne's sentence, finding it to be
procedurally and substantively reasonable. [Record No. 183]
Osborne's judgment became final ninety days thereafter,
on August 11, 2015, when the time period for filing a
petition for a writ of certiorari expired. See Giles v.
Beckstrom, 826 F.3d 321, 323 (6th Cir. 2016) (citing
Supreme Court Rule 13). On May 21, 2015, Osborne filed a
motion to reduce his sentence under 18 U.S.C. § 3582,
seeking the benefits of Amendment 782 to the United States
Sentencing Guidelines. [Record No. 184] That motion was
denied, and a later appeal was dismissed. [Record Nos. 185,
September 13, 2016, Osborne filed the present motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. [Record No. 212] He argues that he is entitled
to a minor participant reduction based on the “newly
amended U.S.S.G. [§] 3B1.2.” [Record No. 212-1] In
accordance with local practice, that motion was referred to
United States Magistrate Judge Hanly A. Ingram for initial
consideration. On September 15, 2016, Magistrate Judge Ingram
ordered Osborne to show cause why his § 2255 motion
should not be dismissed as time-barred and/or procedurally
defaulted. Osborne was granted an extension, and timely
responded. [Record Nos. 219, 224] Magistrate Judge Ingram
issued a Recommended Disposition on November 10, 2016,
recommending the motion be dismissed. [Record No. 226]
Thompson filed objections to the Magistrate Judge's
Recommended Disposition, postmarked November 28, 2016, which
were filed on December 1, 2016. [Record No. 228]
Court must make a de novo determination of those
portions of the Magistrate Judge's Recommendation to
which objections are made. 28 U.S.C. § 636(b)(1)(C).
However, “[i]t does not appear that Congress intended
to require district court review of a magistrate's
factual or legal conclusions, under a de novo or any
other standard, when neither party objects to those
findings.” Thomas v. Arn, 474 U.S. 140, 150
(1985). Nevertheless, the Court has examined the record
de novo and agrees with the Magistrate Judge's
seeking post-conviction relief under 28 U.S.C. § 2255
are subject to the statutorily-prescribed one-year statute of
limitations. As relevant here, 28 U.S.C § 2255(f)(1)
provides that the limitation period runs from the date on
which the judgment of conviction becomes final. When a
federal prisoner does not petition the Supreme Court for
review of an adverse appellate court decision, the judgment
of conviction becomes final upon the expiration of the
deadline for doing so. Sanchez-Castellano v. United
States, 358 F.3d 424, 426 (6th Cir. 2004). As previously
mentioned, Osborne's deadline for seeking a writ of
certiorari was August 11, 2015. Accordingly, Osborne's
deadline for filing the present § 2255 motion was August
11, 2016. Osborne's motion was signed and dated August
14, 2016, and postmarked September 8, 2016. [Record No. 212
at 13] It is, therefore, untimely.
its untimeliness, the Court may accept Osborne's §
2255 petition under the doctrine of equitable tolling, but
only if Osborne “shows (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing.” Jefferson v. United States, 730 F.3d
537, 549 (6th Cir. 2013) (quoting Holland v.
Florida, 560 U.S. 631, 649 (2010)). Osborne argues that
the delay was “excusable neglect, ” claiming that
the mitigating role reduction “just came to [his]
awareness.” [Record No. 225 at 2] Mere ignorance of the
law, however, is insufficient to warrant equitable tolling of
the limitations period. Allen v. Yukins, 366 F.3d
396, 403 (6th Cir. 2004). Because Osborne has shown no
extraordinary circumstance that stood in his way to pursue
this claim, apart from his own lack of knowledge, tolling of
the § 2255 statute of limitations is not warranted.
“Absent compelling equitable considerations, a court
should not extend limitations by even a single day.”
Jurado v. Burt, 337 F.3d 638, 643 (6th Cir. 2003)
(quoting Graham-Humphreys v. Memphis Brooks Museum of
Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000)).
28 U.S.C. § 2255(f)(4) provides that the 1-year period
may also run from “the date on which the facts
supporting the claim or claims presented could have been
discovered through the exercise of due diligence.” In
his response to the show cause order, Osborne argues that the
mitigating role reduction is a “new fact that has come
into light by [sic] the petitioner.” [Record No. 228 at
2] This can be construed as an argument that the statute of
limitations period should not have begun to run until Osborne
became aware of Amendment 794. But it is doubtful that
Amendment 794 constitutes a new “fact” under the
statutory provision. See generally Johnson v. United
States, 544 U.S. 295 (2005). Assuming that it does,
however, Osborne's requested relief fails on the merits.
794 modified the “Application Notes” of U.S.S.G.
§3B1.2, with the purpose of expanding application of the
mitigating role reduction. Such clarifying amendments apply
to cases on direct review. See United States v.
Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016);
see also United States v. Carter, 662 F.App'x
342, 349 (6th Cir. 2016). However, only those amendments
listed in §1B1.10 of the sentencing guidelines are
retroactive on collateral review. United States v.
Horn, 612 F.3d 524, 527 (6th Cir. 2010).
794 is not listed in §1B1.10, and neither has it
otherwise been held to apply on collateral review. See
United States v. Sprouse, No. 2:12-CR-122, 2017 WL
218376, at *1 (E.D. Tenn. Jan. 18, 2017). Therefore, even
assuming the promulgation of Amendment 794 restarts the
clock, or that equitable tolling is appropriate, Osborne is
not entitled to relief under Amendment 794.
in his objections to the Magistrate's Recommendation,
Osborne seems to argue that by triggering his knowledge of
the mitigating role provision, Amendment 794 restarted the
clock for him to bring an ineffective assistance of counsel
claim. Because Amendment 794 was not promulgated until after
Osborne's conviction became final, his counsel could not
have been ineffective in light of the Amendment itself.
However, as he crafts his objections, his 2255 motion should
also be construed as raising an ineffectiveness claim based
on his attorney's failure to request a minor participant
reduction even before Amendment 794. Arguments raised for the
first time in objections are deemed waived. Murr v.
United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).
Even so, this argument is equally lacking in merit. The
mitigating role reduction under U.S.S.G. § 3B1.2 is as
old as the sentencing guidelines themselves. Osborne could
have discovered it through due diligence well-before
Amendment 794 brought it to his attention. And he has not
argued otherwise. See DiCenzi v. Rose, 452 F.3d 465,
471 (6th Cir. 2006) (“The petitioner bears the burden
of proving that he exercised due diligence [under §
to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of
the Rules Governing § 2255 Proceedings, and 28 U.S.C.
§ 2253(c), the Court will deny a Certificate of
Appealability. Osborne has failed to show that that jurists
of reason could conclude that this court's
“dismissal on procedural grounds [is] debatable or