United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C Reeves, United States District Court Chief Judge
Demetrius McGee has filed a motion to alter, amend, or vacate
this Court's judgment entered August 21, 2019. His motion
is based upon either Rule 59 or Rule 60 of the Federal Rules
of Civil Procedure. [Record No. 90] However, McGee cannot
meet the standard to alter, amend, or vacate the judgment
under either rule. As a result, his motion will be denied.
pleaded guilty on March 21, 2017, to conspiring to distribute
methamphetamine, heroin, fentanyl, and furanylfentanyl, in
violation of 21 U.S.C. §§ 841(a)(1) and 846.
[Record No. 41] On July 25, 2017, he was sentenced to a
121-month term of imprisonment, to be followed by a 5-year
term of supervised release. [Record No. 59] McGee did not
appeal his conviction or sentence.
February 2019, McGee filed a pro se motion
requesting leave to file an untimely § 2255. [Record No.
82] He asserted that he could establish good cause for an
extension of time based on excusable neglect because he was
transferred to multiple prisons, did not have access to his
legal documents, and did not have access to the courts.
[Id.] The Court denied his motion because “the
court [could] not consider the timeliness of a § 2255
motion until the petition [was] actually filed.”
[Id. (internal citations omitted)]
then filed a motion to vacate under 28 U.S.C. § 2255 on
August 13, 2019, which this Court denied because it was
untimely and no ground for equitable tolling applied. [Record
Nos. 84. 87] He has now filed a motion to alter or amend and
to vacate the denial of his § 2255 under Rules 59 and 60
of the Federal Rules of Civil Procedure. [Record No. 90]
McGee contends that he did not have notice or the opportunity
to present arguments on the timeliness of his § 2255.
noted that he “expressly reserved his arguments on the
timeliness issue pending a challenge, if any, from the
government.” [Id.] He additionally explains
that he would have argued that his motion was timely based on
the United States Supreme Court decision in Garza v.
Idaho, 139 S.Ct. 738 (2019).
the Federal Rules of Civil Procedure do not apply directly to
criminal cases, courts review motions to reconsider under the
same standard as motions to alter or amend under Rule 59(e).
See United States v. Holland, No. 6: 05-030-DCR,
2016 U.S. Dist. LEXIS, at *1 (E.D. Ky. March 15, 2016)
(citing Huff v. Metro. Life Ins. Co., 675 F.2d 119,
122 (6th Cir. 1982)). To succeed under this rule, a party
must demonstrate either a clear error of law, newly
discovered evidence, an intervening change in controlling
law, or that relief is necessary to prevent manifest
injustice. Brumley v. United Parcel Serv., Inc., 909
F.3d 834, 841 (6th Cir. 2018). A party may not use such a
motion “to raise arguments which could, and should,
have been made before judgment issued.” Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367,
374 (6th Cir. 1998).
district court may sua sponte consider the
timeliness of a habeas petition if “the parties have
fair notice and an opportunity to present their
positions.” Day v. McDonough, 547 U.S. 198,
210 (2006). McGee cites Shelton v. United States,
800 F.3d 292, 293-95 (6th Cir. 2015), for the proposition
that the Court cannot sua sponte dismiss his habeas
petition. The United States Court of Appeals for the Sixth
Circuit concluded in Shelton that it was improper
for the district court to dismiss the defendant's §
2255 at the initial screening stage where the defendant was
not on notice and had not had the opportunity to address the
timeliness of his petition. Id. at 294-95.
case differs from Shelton because McGee had
previously included reasons for why he had not timely filed a
§ 2255 and then when he filed his § 2255 he chose
not to address the timeliness of his petition. He explained
six months before filing his § 2255 that he could
establish good cause for an extension because: he (1) was
transferred to multiple prisons; (2) did not have access to
have legal documents; and (3) did not have access to the
courts. [Record No. 82] The Court considered each of these
arguments when addressing the timeliness of his § 2255
petition. McGee was clearly on notice that his petition was
untimely when he filed his motion for leave to file an
untimely § 2255 and presented his arguments on the
timeliness of his petition. See Bass v. Rewarts, No.
2:18-CV-13149, 2018 U.S. Dist. LEXIS 180295 (E.D. Mich. Oct.
22, 2018) (concluding the petitioner had the opportunity to
address the limitations issue when he “acknowledged the
statute of limitations issue in his habeas corpus petition,
admitting that the petition was untimely, but arguing that he
was entitled to equitable tolling of the statute of
limitations”). Further, McGee chose not to discuss the
timeliness of his petition in his actual § 2255. This
case is similar to Stewart v. Harry where the Sixth
Circuit concluded that the district court's sua
sponte dismissal was not improper because Stewart had
presented his position on timeliness in his habeas petition
and the Court considered it when dismissing his petition. No.
17-1494, 2017 U.S. App. LEXIS 27996, *2-3 (6th Cir. Nov. 21,
2017). Here, McGee was on notice of the timeliness issue and
previously presented arguments for why he should be allowed
to file an untimely § 2255.
reference to Garza v. Idaho does not change the
Court's decision on the timeliness of the defendant's
§ 2255 because the case was not made retroactive on
collateral review. The Supreme Court in Garza
concluded that the presumption of prejudice when an
attorney's deficient performance costs a defendant an
appeal that he otherwise would have pursued applies
regardless of whether the defendant signed an appeal waiver.
139 S.Ct. at 742. But Garza did not announce a new
rule of constitutional law and the Supreme Court did not
expressly make it retroactive or demonstrate retroactivity
through a combination of cases dictating that it is
retroactive. In re Sanchez, No. 19-11288-B, 2019
U.S. App. LEXIS 13242, *4-5 (11th Cir. May 1, 2019).
Accordingly, the defendant cannot rely upon Garza to
circumvent the one-year statute of limitations set forth in
28 U.S.C. § 2255(f).
summary, McGee has not shown a clear error of law, newly
discovered evidence, an intervening change in controlling
law, or the need to prevent manifest injustice. Accordingly,