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Montgomery v. United States

United States District Court, S.D. West Virginia, Charleston

March 28, 2017



          David A. Faber Senior United States District Judge

         Pending 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.

         In 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).

         Movant 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.


         In this 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.

         McQuiggin 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.

         The 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.

         In 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.[1]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 stare decisis.

         Accordingly, 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.[2]


         A. A Sentencing Court's Application of the Armed Career Criminal Act (“ACCA”) Enhancement Would Have Been Valid Here.

         Movant 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).

         In 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 ...

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