United States District Court, S.D. Indiana, Indianapolis Division
MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF
LARRY J. McKINNEY, District Judge.
For the reasons explained in this Entry, the motion of Anthony Rutledge ("Mr. Rutledge") for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.
I. The § 2255 Motion
In March of 2009, a complaint was filed charging Mr. Rutledge with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) in 1:09-cr-0049-LJM-KPF-1. A jury found him guilty of the charge in February of 2010, but on appeal, the Seventh Circuit Court of Appeals held that the district court failed to make adequate findings with respect to Mr. Rutledge's challenge under Batson v. Kentucky, 476 U.S. 79 (1986) and remanded the case to allow the district court to "make findings on the issues we have identified. If the passage of time precludes the district court from making such findings, or if it finds that the prosecutor's reasons are not credible, it must vacate Rutledge's conviction." United States v. Rutledge, 648 F.3d 555, 562 (7th Cir. 2011). On October 4, 2011, the Court vacated Mr. Rutledge's conviction and reset the matter for trial.
On February 8, 2012, Mr. Rutledge filed a petition to enter a plea of guilty and a plea agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. On March 5, 2012, the Court conducted a hearing on Mr. Rutledge's petition to enter a plea of guilty. At the hearing, the Court advised Mr. Rutledge of his rights and heard the factual basis for the plea. The Court determined that the plea was voluntarily and knowingly made. The Court accepted Mr. Rutledge's plea of guilty and adjudged him guilty as charged.
A sentencing hearing was held on the same day. The Court sentenced Mr. Rutledge to a term of 195 months in prison, to be followed by five years of supervised release. Judgment was entered on the docket on March 15, 2012.
Complying with the terms of the plea agreement, Mr. Rutledge did not appeal his conviction or sentence. On January 23, 2014, Mr. Rutledge filed his motion for relief pursuant to 28 U.S.C. § 2255. His motion was placed in the prison mail system on January 20, 2014.
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). In his § 2255 motion, Mr. Rutledge asserts that his sentence is illegal because one of his three prior convictions, attempted residential entry, should not have qualified him as an Armed Career Criminal. He argues that counsel was ineffective by not challenging the prior conviction of attempted residential entry and for not filing a notice of appeal challenging his sentence. The United States argues that Mr. Rutledge's § 2255 motion is time-barred and barred by the waiver of post-conviction relief rights found in the written plea agreement.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations period for § 2255 motions. 28 U.S.C. § 2255(f). For purposes of § 2255(f)(1), that period runs from "the date on which the judgment of conviction becomes final." Id. A judgment of conviction becomes final when the conviction is affirmed on direct review or when the time for perfecting an appeal expires. Clay v. United States, 537 U.S. 522, 527 (2003). As noted, the judgment of conviction was entered on the clerk's docket on March 15, 2012. Mr. Rutledge's conviction became final on March 29, 2012. Using the one-year period from the date on which the judgment of conviction became final, Mr. Rutledge's present motion would have to have been filed by March 29, 2013, to be timely. Applying the prison mailbox rule, see Houston v. Lack, 487 U.S. 266, 271 (1988), Mr. Rutledge's § 2255 motion can be considered to have been filed on the date he placed the motion in the prison mail system, which was January 20, 2014. That date was almost ten months after the § 2255(f)(1) statute of limitations period expired. Mr. Rutledge's motion is time-barred, unless he can show that another provision of § 2255(f) applies.
Mr. Rutledge acknowledges that his § 2255 motion was not timely filed under § 2255(f)(1). He appears to argue instead that § 2255(f)(3) applies. That subsection provides that the one year limitation runs from "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." 28 U.S.C. § 2255(f)(3).
Mr. Rutledge contends that his motion is timely "[d]ue to the retroactive application of Descamps v. United States, 133 S.Ct. 2276 (2013) and McQuiggin v. Perkins, (No. 12-126) (S.Ct. May 28, 2013)...." He contends that these cases held that if actual innocence is proven, it serves as a gateway through which a petitioner may pass even if the AEDPA statute of limitations has expired. Dkt. 1, pg. 12. The Descamps decision provides Mr. Rutledge no basis for relief, however, because the Supreme Court has not made Descamps retroactive on collateral review. Groves v. United States, 755 F.3d 588, 593 (7th Cir. 2014); see also In re Jackson, 776 F.3d 292, 296 (5th Cir. 2015) ("Nothing in Descamps indicates that its holding announced a new rule that was constitutionally based, and Descamps did not announce that its holding applied retroactively to cases on collateral review."). McQuiggin v. Perkins, 133 S.Ct. 1924 (2013) holds that there is an actual innocence exception to AEDPA's one-year statute of limitations in habeas cases brought under 28 U.S.C. § 2254, but only under extraordinary equitable circumstances. McQuiggin is limited to "an untimely first federal habeas petition alleging a gateway actual-innocence claim." Id. at 1934. McQuiggin requires that a claim of actual innocence meet the "demanding" standard of Schlup v. Delo, 115 S.Ct. 851 (1995). Id. at 1936. The Court did not announce that McQuiggin was a new and retroactively-applicable right. See Stewart v. United States, No. 15-cv-73-JPS, 2015 WL 477226 (E.D.Wis. Feb. 5, 2015); Thomas v. Cross, No. 14-cv-01103-DRH, 2014 WL 5849093 (S.D.Ill. Nov. 12, 2014) (the Supreme ...