United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
before the court is Movant Keith Lamont Montgomery's
(“Montgomery” or “Movant”) pro
se Motion to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody pursuant to 28 U.S.C. § 2255
(Doc. No. 59), Motion for Evidentiary Hearing (Doc. No. 61),
and Motion for Appointment of Counsel (Doc. No. 62). By
Standing Order, this matter was referred to United States
Magistrate Judge Cheryl A. Eifert. Pursuant to 28 U.S.C.
§ 636(b), the Order directs Magistrate Judge Eifert to
submit proposed findings and recommendation concerning the
disposition of this matter. Magistrate Judge Eifert submitted
her Proposed Findings and Recommendation
(“PF&R”) on October 20, 2015. (Doc. No. 69.)
The PF&R determined that Montgomery clearly is not
entitled to relief under 28 U.S.C. § 2255; therefore,
Magistrate Judge Eifert found that Montgomery is not entitled
to an evidentiary hearing and recommended that
Montgomery's § 2255 Motion be denied, and this
matter be dismissed from the active docket of this court.
accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Eifert's PF&R. Under § 636(b), the failure of
any party to file objections within the appropriate time
frame constitutes a waiver of that party's right to a
de novo review by this court. See Snyder v.
Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v.
Arn, 474 U.S. 140 (1985). Moreover, this court need not
conduct a de novo review when a party “makes
general and conclusory objections that do not direct the
court to a specific error in the magistrate's proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
made a filing related to the PF&R: a set of objections.
(Doc. No. 70.) Each of Movant's objections is now
addressed in turn. Although Movant addresses the equitable
tolling argument last, this court deems it
“jurisdictional” and will, accordingly, commence
its analysis there. United States v. Kwai Fun Wong,
135 S.Ct. 1625, 1631 (2015). The court determines that the
objections are meritless. As a result, the court adopts the
PF&R, denies § 2255 relief (accordingly denying an
evidentiary hearing as well), and directs the Clerk to
dismiss this case from the active docket of the court.
EQUITABLE TOLLING IS UNWARRANTED IN THIS CASE
case, equitable tolling is foreclosed by governing
precedents. Movant pins his hopes on McQuiggin v.
Perkins, 133 S.Ct. 1924 (2013), which enables limited
equitable tolling. It is unavailing.
did not disallow a federal court from “entertaining an
untimely first federal habeas petition raising a convincing
claim of actual innocence, ” 133 S.Ct. at 1933-35. In
McQuiggin, the United States Supreme Court construed
28 U.S.C. § 2244(d)(1)(D), which is a provision of the
statute of limitations governing federal habeas petitions
lodged by state prisoners. For a moment, the court assumes
that McQuiggin applies just as forcefully to §
2255 motions respecting federal prisoners. Even so, the
United States Court of Appeals for the Fourth Circuit
accurately has held that “McQuiggin does not
extend to cases in which a movant asserts actual innocence of
his sentence, rather than of his crime of conviction.”
United States v. Jones, 758 F.3d 579, 586 (4th Cir.
2014). Because Movant's assertions fall squarely within
the “actual innocence of his sentence”
category, instead of the “actual innocence . . . of his
crime of conviction” category,
McQuiggin is of no help to Movant-and equitable
tolling is unavailable to him. Id. (emphases added).
Nor is the court surprised by the logic of Jones
since, on top of the risk inherent in extrapolating the
holding of a United States Supreme Court decision well beyond
its original contours, there is another lingering but no less
important concern: Whereas equitable tolling might be
sensible when the evidence required to raise an actual
innocence claim pertaining to the crime of conviction
sometimes is hard to come by and might surface later, no such
delay is ordinarily justifiable when the sentence
itself is contested.
time bar at issue here is jurisdictional. This or any other
court has no warrant to liberally confer on a movant
equitable-tolling effect when “Congress [has] made the
time bar at issue jurisdictional.” Kwai Fun
Wong, 135 S.Ct. at 1631. “When that is so, a
litigant's failure to comply with the bar deprives a
court of all authority to hear a case.” Id.
Indeed, this is so much the case that “a court must
enforce the limitation even if the other party has waived any
timeliness objection.” Id. (citing
Gonzalez v. Thaler, 565 U.S. 134 (2012)). In such
circumstances, “courts are obligated to consider
sua sponte issues that the parties have disclaimed
or have not presented.” Gonzalez, 565 U.S. at
141. Furthermore, “a court must [enforce the
limitation] even if equitable considerations would support
extending the prescribed time period.” Id.
(citing John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 133-34 (2008)). Admitting that
these are “harsh consequences, ” the United
States Supreme Court has required that there be a
“clear statement” from the First Branch that
“Congress [did actually] imbue a procedural bar with
jurisdictional consequences.” Kwai Fun Wong,
135 S.Ct. at 1632. This is true here.
addition, Movant's motion is unavailing under the Fourth
Circuit's decision in Whiteside v. United
States, 775 F.3d 180 (4th Cir. 2014) (en banc),
cert. denied, 135 S.Ct. 2890 (2015) (Whiteside
II). This is because “[e]quitable tolling . . .
may not be applied where . . . the only impediment to timely
filing was the discouragement felt by petitioner when
calculating his odds of success.” Id. at 186.
Additionally, the Fourth Circuit's decision in United
States v. Simmons, 649 F.3d 237, 243-45, 250 (4th Cir.
2011) (en banc) (a prior conviction qualified as a
“controlled substance offense” under the
Guidelines only if the particular defendant could have been
sentenced to more than a one-year term of imprisonment for
the crime, without considering hypothetical enhancements or
aggravating factors), is inapplicable to Movant. This is
because both of Movant's convictions, in Virginia and in
Michigan, count as “controlled substance offense”
convictions.The court looks to the potential sentence,
not the actual sentence received, in making this
determination. Lastly, even assuming that Movant somehow was
entitled to equitable tolling with respect to his
career-offender argument, the Fourth Circuit has held that
“a mistaken career offender designation [under the
Guidelines] is not cognizable on collateral review, ”
unless a conviction underlying the career-offender
designation later is vacated, thereby changing the
defendant's Guidelines range itself. See United
States v. Newbold, 791 F.3d 455, 459 (4th Cir. 2015)
(citation omitted). This court's opinion is governed by
Newbold, and the court must consider it vertical
Movant's motion is time-barred, and this objection is
OVERRULED. Ordinarily, in the interest of judicial restraint,
this might end the case. However, to give the issues plenary
treatment and to simplify them in case Movant subsequently
elects to lodge an appeal, the court will also address
Movant's remaining objections.
A Sentencing Court's Application of the Armed Career
Criminal Act (“ACCA”) Enhancement Would Have Been
did not receive an ACCA-based sentencing enhancement. The
Fourth Circuit's decision in United States v.
Span, 789 F.3d 320 (4th Cir. 2015), construing
Shepard v. United States, 544 U.S. 13 (2005) (plurality
opinion), would not have precluded a ACCA sentencing
enhancement here. The Fourth Circuit has stated that
“Shepard-approved sources, ” which
include “the charging document, plea agreement, plea
transcript between the judge and the defendant, ”
“unlike police reports, properly limit the inquiry of
sentencing courts to conclusive . . . judicial
record[s].” Span, 789 F.3d at 326 (citations
and internal quotation marks omitted).
prosecuting this collateral challenge, it is Movant's
burden “to establish his grounds by a preponderance of
the evidence.” Sutton v. United States of
America, No. CRIM.A. 2:02CR65, Civ.A. 2:05CV91, 2006 WL
36859, *2 (E.D. Va. Jan. 4, 2006). A collateral attack under
§ 2255 is, by design, far more limited than an appeal as
the “usual and customary method of correcting trial
errors is by appeal.” United States v.
Allgood, 48 F.Supp.2d 554, 558 (E.D. Va. 1999); see
also United States v. Frady, 456 U.S. 152, 165 (1982)
(“[A] final judgment commands respect. For this reason,
we have long and consistently affirmed that a collateral
challenge may not do service for an appeal.”). Since a
collateral attack does not “serve the same functions as
an appeal, the doctrine of procedural default bars the
consideration of a claim that was not raised at the
appropriate time during the original proceedings or on
appeal.” S ...