United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. REEVES, CHIEF JUDGE
Tracey Thomas has filed a motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255.
[Record No. 132] The matter was referred to United States
Magistrate Judge Candace J. Smith for the purpose of
conducting a preliminary review of the matter pursuant to 28
U.S.C. § 636(b)(1)(B) and Rule 4(b) of the Rules
Governing Section 2255 Proceedings for the United States
District Courts. Magistrate Judge Smith reviewed Thomas'
motion and issued a Report and Recommendation
(“R&R”) on December 5, 2019. The magistrate
judge recommended that the Court deny the motion without
issuing a Certificate of Appealability. [Record No. 142');">142]
Thomas has not objected to the R&R and the matter is ripe
for the undersigned's review.
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).
Nonetheless, the Court has conducted a de novo
review of the matter and agrees with Magistrate Judge
Smith's analysis. Thomas' § 2255 motion will be
denied because it is untimely, and no COA shall issue.
15, 2017, Thomas pleaded guilty to conspiring to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21
U.S.C. § 846. [Record No. 67] Thomas was sentenced on
August 31, 2017, to a term of one hundred forty-four months
incarceration, followed by eight years of supervised release.
[Record No. 91] Thomas appealed, but the United States Court
of Appeals for the Sixth Circuit affirmed the judgment in a
July 24, 2018, opinion. [Record No. 119] There is no
indication that Thomas moved for rehearing on appeal, and he
has indicated in his motion that he did not petition the
United States Supreme Court for issuance of a writ of
certiorari. [Record No. 132, p. 2');">p. 2]
defendant certified that he placed his § 2255 motion in
the prison mailing system on October 29, 2019. Id.
at p. 12. He asserts four grounds for relief: ineffective
assistance of counsel for failure to raise the First Step
Act; (ii) ineffective assistance of counsel for failure to
argue that the “[a]uthorities were directed to arrest
[him] for the sole purpose of establishing [j]urisdiction for
the [f]ederal [g]overnment;” (iii) ineffective
assistance of counsel for failure to raise double jeopardy;
and (iv) ineffective assistance of counsel for failure to
advise him of the harms and benefits of testifying.
Id. at pp. 4-8. Thomas requests that this Court
vacate his previously-imposed sentence and resentence him.
Id. at p. 12.
motion will be denied because it is untimely. As Magistrate
Judge Smith notes [Record No. 142');">142, p. 2');">p. 2], Thomas could have
filed a timely § 2255 motion within one year of
“the date on which the judgment [became] final.”
28 U.S.C. § 2255(f)(1). “A conviction becomes
final when the time for direct appeal expires and no appeal
has been filed . . . .” Gillis v. United
States, 729 F.3d 641, 644 (6th Cir. 2013). Further, a
defendant may petition the Supreme Court for a writ of
certiorari within ninety days of a circuit court of
appeals' entry of judgment. Sup. Ct. R. 13. The Sixth
Circuit affirmed the judgment in Thomas' case on July 24,
2018. Thus, and the ninety-day window to appeal expired on
October 22, 2018.
had until October 22, 2019 to file the present motion.
However, he filed the motion seven days late when he
deposited it in the prison mailing system on October 29,
2019. See Rule 3(d) of the Rules Governing Section
2255 Proceedings for the United States District Courts. The
motion, therefore, is untimely.
Thomas has not overcome the untimeliness of his petition by
demonstrating that the limitations period should be equitably
tolled. An untimely § 2255 motion is subject to
equitable tolling if the movant is able to demonstrate that
he has been “pursuing his rights diligently;” but
“some extraordinary circumstance stood in his way and
prevented timely filing.” Jones v. United
States, 689 F.3d 621, 627 (6th Cir. 2012) (internal
citations and quotation marks omitted). And the defendant,
“bears the burden of demonstrating that he is entitled
to equitable tolling.” McClendon v. Sherman,
329 F.3d 490, 494 (6th Cir. 2003) (Griffin v.
Rogers, 308 F.3d 647, 653 (6th Cir. 2002)). Equitable
tolling is a sparingly used doctrine, and “[a]bsent
compelling equitable considerations, a court should not
extend limitations by even a single day.” Vroman v.
Brigano, 346 F.3d 598, 604 (6th Cir. 2003) (quoting
Graham-Humphreys v. Memphis Brooks Museum of Art,
Inc., 209 F.3d 552, 560 (6th Cir. 2000)).
has failed to carry his burden here. His motion does not
address equitable tolling, as it merely states that it is
timely “because it is within the one year
period.” Magistrate Judge Smith conducted an equitable
tolling analysis in the R&R, effectively putting Thomas
on notice that he could object on grounds that equitable
tolling is appropriate. [Record No. 142');">142, p. 4] But he has not
objected to the R&R in any respect. Accordingly, Thomas
has neither shown that he has diligently pursued his rights,
nor demonstrated that an extraordinary circumstance prevented
him from filing a timely motion.
Court also agrees that a Certificate of Appealability
(“COA”) should not issue. A movant is entitled to
a COA “only if [he] has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336
(2002). When a district court denies a § 2255 motion on
procedural grounds, the defendant must demonstrate that: (i)
jurists of reason would find it debatable whether the motion
states a valid claim of the denial of a constitutional right;
and (ii) jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Thomas has failed to meet his burden. His § 2255 motion
is unquestionably untimely, and he has provided no argument
indicating that jurists of reason would dispute this
determination or ...