Opinion
7:21-CV-255-FL 7:15-CR-46-FL-3
04-06-2023
JORDAN RAY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge
This matter comes before the court on referral for memorandum and recommendation on Petitioner Jordan Ray's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence and motions to amend, [DE-542, -560, -561, -571], and the Government's motion to dismiss, [DE-565], which Petitioner opposes, [DE-569]. For the reasons stated below, it is recommended that the Government's motion to dismiss be allowed, Petitioner's motions to amend be denied, and the petition be dismissed.
I. Background
On May 7, 2015, Ray was charged in a multi-defendant indictment by the Grand Jury with conspiracy to distribute and possess with the intent to distribute heroin, marijuana, Percocet, cocaine, and cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) (Count 1); possession with the intent to distribute a quantity of heroin, a quantity of marijuana, a quantity of cocaine, and a quantity of cocaine base (crack), in violation of in violation of 21 U.S.C. § 841(a)(1) (Count 12); possession with the intent to distribute a quantity of heroin, a quantity of marijuana, twenty-eight (28) grams or more of cocaine base (crack), and a quantity of cocaine and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 13); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 14). [DE-1], On April 9, 2019, Ray pleaded guilty without a plea agreement to the four counts with which he was charged. [DE-443]. On October 8, 2019, the court sentenced Ray to a total of 270 months' imprisonment, five years of supervised release, and a $400.00 special assessment, and judgment was entered on October 21, 2019. [DE-492, -496], Ray did not appeal his conviction or sentence.
Although a plea agreement was entered into the record prior to arraignment, subsequent court records indicate Ray pleaded guilty without a plea agreement.
On April 12, 2021, the court received a letter from Ray requesting the appointment of an attorney to assist him with filing a direct appeal or a § 2255 appeal. [DE-542], Ray asserted he was not given effective assistance of counsel regarding the § 924(c) charge, the Career Offender designation, or the offense level calculation, and his counsel failed to file an appeal after Ray directed him to do so after sentencing. Id. The court denied the motion to appoint counsel and provided Ray with notice of intent to recharacterize his motion as an attempt to file a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [DE-545], After allowing Ray multiple extensions of time to respond to the court's order, the court recharacterized his motion as one under § 2255. [DE-558]. On May 5, 2022, Ray filed a § 2255 motion on the proper form, in which he asserted that his counsel was ineffective for failing to file an appeal, [DE-560], and a request for leave to file an amended § 2255 motion within sixty days, [DE-561], On June 16,2022, the Government filed a motion to dismiss Ray's § 2255 petition, [DE-565], and Ray filed a response in opposition, [DE-569]. On October 11, 2022, Ray filed a second motion to amend his § 2255 petition, asserting his counsel was ineffective by inducing him to plead guilty by misadvising him that he would receive relief under the First Step Act, by failing to investigate whether Ray owned or possessed the gun that was the basis for the § 924(c) charge, and by failing to challenge convictions erroneously scored as Career Offender predicates. [DE-571], Ray also contends that the court should not bar his petition as untimely because he was unable to obtain legal paperwork or assistance filing his petition due to pandemic lockdowns. Id.
II. Legal Standards
After conviction and exhaustion or waiver of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, prisoners in federal custody may attack the validity of their convictions pursuant to 28 U.S.C. § 2255. Section 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence.” United States v. Mikalajunas, 186 F.3d 490,495 (4th Cir. 1999). Where a petition seeks relief from a nonconstitutional error, “the scope of review ... is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure.” Id. (internal quotation marks and citations omitted). “In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence.” Toribio-Ascencio v. United States, No. 7:05-CR-00097-FL, 2010 WL 4484447, at *1 (E.D. N.C. Oct. 25, 2010) (unpublished) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
B. Rule 12(b)(6)
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). However, the ‘“[f]actual allegations must be enough to raise a right to relief above the speculative level' and have ‘enough facts to state a claim to relief that is plausible on its face.'” Wahi v. Charleston Area Med. Ctr, Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555 (citation omitted). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Revene v. Charles Cnty. Comm 'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (internal quotation marks omitted)). Moreover, a court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). This standard applies equally to a Rule 12(b)(6) motion challenging a § 2255 petition. See Rule 12, Rules Governing Section 2255 Proceedings (applying the Federal Rules of Civil Procedure to a § 2255 proceeding to the extent such rules are not inconsistent with any statute or the§ 2255 rules).
III. Analysis
The Government contends the § 2255 petition must be dismissed as untimely pursuant to 28 U.S.C. § 2255(f). Gov't Mem. [DE-566] at 2-4. Specifically, the Government argues that Ray was required to file his § 2255 petition by October 22, 2020, which it contends is one year after the judgment in this case became final, but he did not file any claims until the court received his initial letter on April 23, 2021, expressing intent to seek relief under § 2255. Id. at 3. Ray asks the court not to bar his motion as untimely because after sentencing in September 2019, he was held in transit for over six months awaiting transfer to the New Jersey Department of Corrections to complete a state sentence, and he was locked down without access to a law library, legal paperwork, or legal assistance to seek reliefunder §2255. Prop.Am. Pet. [DE-571] at 11. In2020 and 2021, Petitioner was housed in three different state prisons, he was not in one place long enough to get his paperwork or do any research, and he was locked down due to the pandemic. Id.
Under the Antiterrorism and Effective Death Penalty Act of 1996, § 2255 claims are subject to a one-year statute of limitations, which runs from the latest of the following:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255(f)(1)-(4). Equitable tolling of the one-year statute of limitations is available only in rare circumstances, and a petitioner bears a heavy burden to demonstrate entitlement to tolling.
To prevail on an equitable tolling theory, a petitioner must demonstrate that: 1) he
has been pursuing his rights diligently, and 2) some extraordinary circumstances stood in his way. Holland v. Florida, 560 U.S. 631, 649 (2010); United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (framing the inquiry as a three-part test where an otherwise time-barred petitioner must show: 1) extraordinary circumstances; 2) beyond his control or external to his own conduct; 3) that prevented him from making a timely filing). Thus, “equitable tolling is available only in those rare instances where - due to circumstances external to the party's own conduct - it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001).Clarke v. United States, No. 4:02-CR-60-FL-5, 2023 WL 1110292, at *3 (E.D. N.C. Jan. 30, 2023).
Ray's judgment was entered on October 21, 2019, [DE-496], and his notice of appeal was due fourteen days thereafter on November 4, 2019. See Fed. R. App. P. 4(b)(1)(A). Because Ray did not file an appeal, his conviction became final, for purposes of § 2255(f)(1), on November 4, 2019, and his § 2255 motion was due no later than November 4, 2020. See Durham v. United States, No. 5:16-CR-192-1FL, 2022 WL 1311691, at *3 (E.D. N.C. Apr. 7, 2022) (explaining judgment became final fourteen days after entry, and § 2255 motion was due no later than one year thereafter), report and recommendation adopted, 2022 WL 1310776 (E.D. N.C. May 2, 2022). Ray's first communication regarding his intent to file a § 2255 motion was dated April 17, 2021 and was received by the court on April 23, 2021, more than five months after the one-year statute of limitations expired. Thus, Ray's petition is time barred absent equitable tolling.
Ray does not argue that § 2255(f)(2)-(4) apply.
Ray asserts that the circumstances of his custody prevented him from timely filing a § 2255 motion. First, after sentencing in September 2019, Ray claims he was held in transit for over six months awaiting transfer to the New Jersey Department of Corrections to complete a state sentence, and he was locked down without access to a law library, legal paperwork, or legal assistance to seek relief under § 2255. Prop. Am. Pet. [DE-571] at 11. According to Ray, he arrived in New Jersey in February 2020, just before everything shut down, Apr. 17, 2021 Pet. [DE-542], and in 2020 and 2021, he was housed in three different state prisons, he was not in one place long enough to get his paperwork or do any research, and he was locked down due to the pandemic, Prop. Am. Pet. [DE-571] at 11.
None of the reasons presented by Ray for failing to timely file his § 2255 petition demonstrates the extraordinary circumstances necessary to justify equitable tolling. Prison transfers, lockdowns, restricted access to a law library, and the inability to obtain court documents are “difficulties inherent in prison life” that courts have declined to characterize as “extraordinary circumstances.” Hockaday v. United States, No. 4:ll-CR-85-H, 2015 WL 7429995, at *2 (E.D. N.C. Nov. 20, 2015) (quoting Goodman v. Young, No. 1:12-CV-596, 2013 WL 2285236, at *6 (M.D. N.C. May 23, 2013)). Likewise, the fact that Ray did not have legal counsel or other assistance does not justify his lack of diligence in pursuing § 2255 relief. See United States v. Davis, No. 17-CR-196-2,2023 WL 2564335, at *3 (E.D. Va. Mar. 16,2023) (“Although the Fourth Circuit has not explicitly addressed this point, multiple federal Courts of Appeal have explained that ‘neither a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling.'”) (quoting Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999)). Neither does the pandemic-related lockdown beginning in February 2020, shortly after Ray arrived in New Jersey, merit equitable tolling.
Ray asserts that he was in three different New Jersey state prisons and was not “able to get progress in this matter,” [DE-542] at 1; that prisoners struggled to get their records and necessary documents in order to timely file petitions as a result of the Covid-19 lockdowns, [DE-561] at 1; and that the law library was closed, copy machines were unavailable, and the commissary was often closed making stamp purchases impossible, id. See also [DE-571] at 11. Ray's assertion that he “could not get progress in this matter” is too vague and generalized where he fails to specify any way in which he attempted to make progress in his case. See Litchfield v. United States, No. 5:19-CR-65-GCM-DCK-l, 2022 WL 17417177, at *4 (W.D. N.C. Dec. 5, 2022) (“Petitioner's allegations about COVID-19 restrictions are so vague and conclusory that the Court is unable to determine how long they lasted, whether he pursued his rights diligently, and whether they prevented him from timely filing his Motion to Vacate.”) (citing United States v. Taylor, 22 Fed.Appx. 226 (4th Cir. 2001) (finding that untimely and conclusory allegations were insufficient to equitably toll the statute of limitations)). Ray does not specify what court records or documents he required in order to file his petition or why the inability to make copies prevented him from filing his petition, and Ray's assertion that the commissary was “often” closed does not explain why he could not purchase stamps on the occasions when the commissary was open. See United States v. Piner, No. 3.18CR15, 2022 WL 1720358, at *3 (E.D. Va. May 27, 2022) (declining to apply equitable tolling due to lack of access to the law library or to legal materials during Covid lockdown because the petitioner provided no specific details about how these barriers prevented him from filing his petition), appeal dismissed, No. 22-6768, 2022 WL 18213893 (4th Cir. Oct. 5, 2022); see also United States v. Turner, No. 3:18-CV-158, 2021 WL 3934322, at *2-3 (E.D. Va. Sept. 2,2021) (finding law library closure due to COVID-19 did not justify equitable tolling). Ray has not demonstrated that he was pursuing his rights diligently or that extraordinary circumstances stood in his way. Accordingly, it is recommended that Ray's § 2255 petition be dismissed as untimely and his motions to amend be denied.
IV. CONCLUSION
For the reasons stated above, it is recommended that the Government's motion to dismiss be allowed, Petitioner's motions to amend be denied, and the petition be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until April 20, 2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).