United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY UNITED STATES DISTRICT COURT JUDGE.
before the Court is the Defendant's Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255(f)(4) [ECF No.
78]. Upon this Court's initial review of the Motion, as
required by Rule 4(b) of the Rules Governing Section 2255
Proceedings, the Court will dismiss the Motion as untimely.
must give a § 2255 motion prompt initial review and,
“[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion and direct the clerk to notify the moving
party.” Rule 4 of Rules Governing Section 2255 Cases.
2255 allows a person convicted of a federal crime to seek to
vacate, set aside, or correct his sentence. This relief is
available only in limited circumstances, such as where an
error is of jurisdictional or constitutional magnitude, or
where there has been an error of law that “constitutes
a fundamental defect which inherently results in a complete
miscarriage of justice.” See Harris v. United
States, 366 F.3d 593, 594 (7th Cir. 2004) (internal
quotation omitted). Motions to vacate a conviction or correct
a sentence ask a court to grant an extraordinary remedy to a
person who has already had an opportunity of full process.
Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir.
motion filed under 28 U.S.C. § 2255 is subject to a
one-year limitations period that runs from:
(1) the date on which the judgment of conviction becomes
(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
(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). Accordingly, a defendant seeking
collateral review under § 2255 will have one year from
the date on which his judgment of conviction is final to file
his petition, id. § 2255(f)(1); see also
Dodd v. United States, 545 U.S. 353, 357 (2005), or one
year from three limited, alternative circumstances,
id. § 2255(f)(2)-(4).
Defendant's judgment of conviction was entered on June
23, 2016, and no appeal was taken. He filed his Motion to
Vacate on November 16, 2018. Recognizing that his Motion
would otherwise be untimely under § 2255(f)(1), the
Defendant contends that is deadline is governed by subsection
(f)(4). The Defendant asserts that the Supreme Court's
decision in Nelson v. Colorado, 137 S.Ct. 1249
(2017), shows that it was plain error for the Court to rely
on certain Guideline enhancements to determine his sentence.
Ignoring for a moment that the Defendant has not attempted to
explain when he discovered, or through the exercise of due
diligence could have discovered, the Nelson case,
there is a larger problem. He has not presented a
“fact” as that term is understood under
subsection (f)(4). What the Defendant appears to be arguing
is that Nelson established a new legal basis for his
claim. Changes in the law do not fit within the purview of
subsection (f)(4). See Lo v. Endicott, 506 F.3d 572,
575 (7th Cir. 2007) (finding that under § 2244(d)(1)(c),
a parallel limitations provision to § 2255(f)(4), state
court rulings that modify the substantive law do not
constitute a “factual predicate”). A court
decision can only serve as “fact” within the
meaning of § 2255(f)(4) if it is handed down within the
petitioner's “own litigation history [and]
change[s] his legal status.” Id. at 575-76
(noting that a fact is “subject to proof or
disproof”). “Construing every substantive change
in the law as a new ‘fact' for the purposes of
§ 2255(f)(4) would render meaningless the limitations
provision under § 2255(f)(3), which provides that §
2255 motions may be filed within one year of a retroactive
change in the law as pronounced by the Supreme Court.”
Seals v. United States, 2009 WL 1108482, at * 2
(S.D. Ill. Apr. 24, 2009). Accordingly, because the Defendant
has not pointed to any “facts” within his own
litigation history that are subject to proof of disproof, his
Motion cannot be deemed timely under § 2255(f)(4).
the Court notes that there are no grounds for equitable
tolling; there is no suggestion that the Defendant has been
pursuing his rights diligently, nor has he cited to
“extraordinary circumstances” that stood in the
way of a timely filing. See Holland v. Florida, 560
U.S. 631 (2010) (holding that equitable tolling is only
appropriate when an “extraordinary circumstance”
stood in the way of a timely filing and the defendant has
been “pursuing his rights diligently”).
“[E]quitable tolling is rarely granted.”
Jones v. Hulick, 449 F.3d 784, 789 (7th Cir. 2006).
In any event, Nelson did not bring about the
substantive change the Defendant urges. It does not support
the Defendant's claim that the sentencing court committed
plain error when it applied enhancements under the Sentencing
Guidelines for maintaining a drug involved premises and for
possessing a dangerous weapon.
defendants in Nelson were convicted, sentenced, and
ordered to pay court costs, fees, and restitution. 137 S.Ct.
at 1252-53. Even though these convictions were later reversed
with no subsequent convictions, the state retained a portion
of the defendants' money and would not return the funds
unless the defendants could prove his or her innocence by
clear and convincing evidence. Id. at 1254-55. The
Supreme Court concluded that this procedure violated a
defendant's due process rights: “[O]nce those
convictions were erased, ...