UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION No. 7:08-CR-72-F No. 7:12-CV-81-F TERRELL DEMTRIUS McCULLUM, Petitioner v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) MEMORANDUM IN SUPPORT OF UNITED STATES' MOTION TO DISMISS PETITIONER'S MOTION TO VACATE CONVICTION AND SENTENCE The United States of America, by and through the United States Attorney for the Eastern District of North Carolina, hereby files this memorandum in support of its motion to dismiss petitioner's 28 U.S.C. ? 2255 petition. For the reasons set forth below, the Court should grant the Government's motion to dismiss. PROCEDURAL BACKGROUND On July 30, 2008, the petitioner was charged in a single count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. ?? 922(g)(1) and 924. May 28, 2009, petitioner filed a motion to [D.E. 1]. dismiss On the indictment alleging that his previous North Carolina conviction for larceny of a firearm did not constitute a crime punishable 1 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 1 of 14 by a term of imprisonment exceeding one year and that he was therefore legally innocent. motion. agreement, indictment. [D.E. the 18]. On [D.E. 16]. June pled 8, 2009, The Court denied the pursuant the to a plea count the petitioner [D.E. guilty On to single 2009, 19-20]. September 18, petitioner was sentenced to a term of imprisonment of 12 months and a day and to three years' of supervised release. [D.E. 23]. Upon The petitioner did not appeal his conviction or sentence. 1 completion of his sentence, the petitioner began serving his term of supervised release, from which he was revoked on September 8, 2010. [D.E. 39]. On April 4, 2012, the petitioner filed a Motion to Vacate Conviction and Sentence Under 28 U.S.C. ? 2255. [D.E. 43]. Citing United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), petitioner argues that he is no longer a felon for purposes of Title 18, United States Code, Section 922(g)(1). [D.E. 43 at p. 2]. Although paragraph 5 of the plea agreement allowed the defendant to reserve his right to have the appellate court review the Court's denial of his motion to dismiss the indictment which was based on the Court's conclusion that defendant's North Carolina felony conviction for larceny of firearms was a conviction for a crime punishable by imprisonment for a term exceeding one year, the defendant failed to request such review. 2 1 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 2 of 14 The Government now files this motion to dismiss because the petitioner's agreement, claim is barred to vacate by is the waiver in and his he is plea not his motion untimely, "actually innocent" of the crime to which he pled guilty. ARGUMENT I. THE PETITIONER'S CLAIM IS BARRED BY THE WAIVER IN HIS PLEA AGREEMENT The petitioner pled guilty pursuant to a plea agreement. The plea agreement contained an appeal waiver, pursuant to which the petitioner waived the right to challenge his conviction or sentence under 28 U.S.C. ? 2255, "except[] . . . upon grounds of ineffective assistance of counsel and prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea." [D.E. 14 at 1-2]. See United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005) (holding that a defendant "may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary"). The only exceptions to the plea agreement's post-conviction relief waiver are for claims of ineffective assistance of counsel or prosecutorial misconduct, neither of which is raised here. Petitioner has, therefore, waived the right to pursue his ? 2255 claim, and the Court should dismiss it on that basis alone. 3 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 3 of 14 II. PETITIONER'S MOTION TO VACATE SHOULD BE DISMISSED AS UNTIMELY PURSUANT TO 28 U.S.C. ? 2255(f). The petitioner's Motion attempts to argue that the relevant statute of limitations in his case is ? 2255(f)(4) and that "the facts supporting his claim did not become discoverable for purposes of making this claim until the Fourth Circuit announced its new rule in Simmons on August 17, 2011." [D.E. 43 at 4-7]. At least one other court in this district has recently rejected a similar argument and dismissed a ? 2255 motion as untimely. See United States v. Hardison, Nos. 4:11-CV-196-FL and 4:08-CR77-FL-2, Order dated Dec. 27, 2011, attached hereto as Exhibit 1. For a motion to be timely under ? 2255(f)(4), it must be filed within one year of "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." The petitioner's argument is that the Fourth Circuit's ruling in Simmons constitutes a "fact" triggering the statute of limitations under ? 2255(f)(4). The cases he cites, however, are cases in which the qualifying state convictions for career offender status had been vacated by state court orders, see Johnson v. United States, 544 U.S. 295 (2005) and United States v. Gadsen, 332, F.3d 224 (4th Cir. 2003). There has been no action taken here to invalidate or vacate the 4 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 4 of 14 petitioner's predicate state convictions. Instead, Petitioner's prior convictions remain intact, and the only "action" has been the Fourth Circuit's announcement in Simmons of a new legal interpretation of North Carolina's structured sentencing scheme. While Simmons may alter the legal characterization of Petitioner's prior convictions, it is not a newly discovered fact for purposes ? 2255(f)(4). See Lo v. Endicott, 506 F.3d 572, 575 (7th Cir. 2007) (holding that a state court decision modifying substantive law does not constitute a "factual predicate" triggering the one year limitation period under ? 2244(d)(1)(D), petitioner's] because own it "was not a that fact within his [the legal litigation history changed status"); E.J.R.E. v. United States, 453 F.3d 1094 (8th Cir. 2006) (intervening Court of Appeals decision was not a new "fact" rendering claim timely under ? 2255(f)(4); Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th Cir. 2005) (distinguishing Johnson on the ground that "the state court decision in question was a decision in the petitioner's own case. It did not merely establish an abstract proposition of law; rather, it directly eliminated Johnson's legal status as a convict. . . . In this case, by contrast, the California Supreme Court's decision . . . was unrelated to [the petitioner's] 5 case and had no direct Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 5 of 14 effect on his legal status"); Scott v. United States, 2011 WL 1100239 (E.D. Mich.) ("a new interpretation of a statute is a matter of law, not a matter of fact, and, therefore, cannot constitute a newly discovered fact under ? 2255(f)[(4)]"). As Judge Flanagan noted in United States v. Hardison, "[t]o hold now that appellate decisions constitute 'facts' under ? 2255(f)(4), and therefore could serve as the tolling dates for ? 2255 motions, would render moot ? 2255(f)(3). Further, such a holding would create a large loophole in the limitations scheme of ? 2255(f) and would undermine the efforts evinced therein to promote finality." Exhibit 1 at p.4. The issues presented in Hardison are virtually identical to those in the instant case. the logic employed by The Government respectfully submits Judge Flanagan in dismissing the petitioner's claims in the Hardison case was sound, and that the same logic should apply to the petitioner's claim here. Therefore, the petitioner's ? 2255 claim should be dismissed as untimely. III. THE DOCTRINE OF EQUITABLE APPLY TO THE PRESENT CASE. TOLLING SHOULD NOT Petitioner also seeks to escape the time limitations of 28 U.S.C. ? 2255 by citing United States v. Prescott, 221 F.3d 686 (4th Cir. 2000) and Hill v. Braxton, 277 F.3d 701 (4th Cir. 6 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 6 of 14 2002), claiming that the petitioner's case is one of those "rare instances where - due to circumstances external to the party's own conduct - it would be unconscionable to enforce the limitation against the party." Harris v. Hutchinson, however, 209 Braxton, 277 F.3d at 704, citing 325, 330 (4th that Cir. 2000). F.3d Petitioner, cannot establish extraordinary Therefore, the circumstances prevented him from filing on time. Court should not grant such extraordinary relief. Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, and its one-year limitations period, to bring finality to federal court proceedings. United States, 544 U.S. 295, 309 (2005). however, "in the proper circumstances, See Johnson v. Equitable tolling may, apply to excuse of plaintiff's failure to comply with the strict requirements of a statute of limitations." 328 (4th Cir. 2000). Harris v. Hutchinson, 209 F.3d 325, Generally, the equitable tolling doctrine has been applied where "extraordinary circumstances beyond [a claimant's] control made it impossible to file the claims on time." Id. at 330 (internal citation omitted). In Holland v. Florida, 130 S.Ct. 2549 (2010), the Supreme Court articulated a two-part test applicable to equitable tolling claims: (1) the petitioner must demonstrate that he has been pursuing his rights 7 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 7 of 14 diligently, and (2) extraordinary circumstances prevented him from filing in a timely manner. Holland, 130 S.Ct. at 2562. 2 Equitable tolling, however, is appropriate 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." Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc); see also United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004); Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002). the Fourth Circuit correctly cautioned, any invocation of equity to relieve the strict application of a statute of limitations must be guarded an infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes. To apply equity generously would lose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation. We believe, therefore, that any resort to equity must be reserved for 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. Prior to Holland, the Fourth Circuit stated a slightly different test: "an otherwise time-barred petitioner must present "(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time." United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)(citing Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003)). However, post-Holland decisions in ? 2255 contexts appear to apply Holland's two-pronged test. See, e.g., United States v. Terrell, 405 Fed.Appx. 731 (4th Cir 2010) (unpublished). 2 As 8 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 8 of 14 Harris tolling v. in Hutchison, the is 209 F.3d of ? at 330 (discussing motion). purposes "not how of equitable Whether a context 2244 for circumstance tolling is "extraordinary" by equitable the determined inquiring unusual circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for the prisoner endeavoring to comply with AEDPA's limitations period." Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008). Here, petitioner claims that the extraordinary circumstance is that he is factually innocent of the crime and that he filed his claim as soon as practicable after the Simmons decision was issued. [D.E. 43 at 7-8]. As discussed below, Petitioner cannot establish factual innocence of the crime. Moreover, the Fourth Circuit's decision in Simmons is not an extraordinary circumstance that supports equitable tolling here. Lo v. Endicott, 506 F.3d 572, 576 (7th Cir. 2007); Dowling v. Connell, 2010 WL 1849269, at *4 (E.D.N.Y. May 6, 2010). Indeed, under 28 U.S.C. ? 2255(f)(3), a retroactive change in the law by the Supreme Court is one of the four circumstances that may trigger the one-year limitation period. To hold that a change in the law by a court of appeals may toll the statute of limitations 9 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 9 of 14 would greatly expand the ability to file a ? 2255 petition beyond what Congress intended. "The case in law the is Lo, 506 F.3d at 576. clear that the 'extraordinary specifically circumstances' equitable tolling doctrine refer to events or conduct which inhibits a petitioner's ability to file a timely habeas petition . . . , for example, where the prison library was inadequate, where the prisoner was denied access to his files, and where an attorney's egregious misconduct in preparing the petition prevented the petition from being timely filed." Bawaneh v. United States, 2011 WL 1465775, In short, did at *5 (C.D.Cal. April 18, 2011) (citations omitted). Simmons-- regardless of whether it is "extraordinary"-- nothing to "prevent" the defendant from filing on time. 339 F.3d at 246. Rouse, And even if Simmons were an "extraordinary circumstance," there was no impediment to the defendant's earlier ability to bring a ? 2255 petition. As the Eight Circuit explained, "[t]he mere fact that our ruling made it more likely that Appellants' collateral attack would be successful does not change the reality that Appellants were free, at any time, to file their ? 2255 petitions after final judgment was entered and before the one-year statute of limitations period had expired." 10 E.J.R.E., Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 10 of 14 453 F.3d at 1098 (8th Cir. 2006). defendant legally would have lost In short, the fact that the if he raised his petition earlier does not change the fact that nothing prevented him from bringing it. In Dodd Id.; Bawaneh, 2011 WL 1465775, at *5 (same). v. United States, the Supreme does not Court apply on implicitly where an recognized appellate that court equitable makes a tolling new right retroactive collateral review but that decision occurs over a year after the right was created. 545 U.S. 353, 359 (2005). It "recognize[d] the potential for harsh results in some cases" by its interpretation of subsection (f)(3). Id. But it explained that "we are not Id. If free to rewrite the statute that Congress has enacted." equitable tolling removed the "harsh results" of the statute, the Supreme Court would have it said so said in explaining if AEDPA its is Id. interpretation. Instead, simply that unjust, it is up to Congress, not the Court, to change it. This explanation makes no sense if equitable tolling applies. Accordingly, the doctrine of equitable tolling does not apply, and this Court should dismiss the petition as untimely. 11 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 11 of 14 IV. THE PETITIONER IS NOT FACTUALLY INNOCENT; THEREFORE HIS CLAIM OF "ACTUAL INNOCENCE" DOES NOT ELIMINATE THE REQUIREMENT THAT HIS MOTION BE TIMELY. The petitioner's final argument is that the limitations contained in 28 U.S.C. ? 2255 simply should not apply to him because, he asserts, he is "actually innocent" of the crime. [D.E. 43 at 9]. In support of this proposition, petitioner relies upon Bousely v. United States, 523 U.S. 614, 621 (1998) and United States v. Maybeck, 23 F.3d 888 (4th Cir. 1994). This issue was addressed squarely in United States v. Pettiford, 612 F.3d 270 (4th Cir. 2010), which, in considering the application of the Maybeck exception, explained: "To succeed on actual innocence grounds . . . . 'a petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent.'" Pettiford, 612 F.3d at 282, citing United States v. Mikalajunas, 186 F.3d 490, 494 (4th Cir. 1999) (emphasis added). The application to the present case is evident: the petitioner has no credible claim of factual innocence. in light of Simmons, he has become 12 legally innocent At most, of the Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 12 of 14 charge against him. Nothing whatsoever has changed about the factual underpinnings of his case, and as such, the petitioner's reliance upon Maybeck is ill-considered. The exception simply does not apply to cases like the petitioner's in which an assertion of legal innocence is the only available basis of an actual innocence claim. on his Accordingly, Simmons claim petitioner and his has motion procedurally defaulted should be dismissed. CONCLUSION For the foregoing reasons, petitioner's motion should be dismissed. Respectfully submitted this 30th day of April, 2012. THOMAS G. WALKER United States Attorney /s/ Felice McConnell Corpening FELICE McCONNELL CORPENING Assistant United States Attorney Criminal Division 310 New Bern Avenue Suite 800 Raleigh, NC 27601 Telephone: (919) 856-4582 Facsimile: (919) 856-4487 Email: felice.corpening@usdoj.gov NC Bar No. 21199 13 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 13 of 14 CERTIFICATE OF SERVICE I certify that I have on this 30th day of April, 2012, served a copy of the foregoing Response upon counsel for the petitioner by electronic filing to: Ms. Devon L. Donahue Assistant Federal Public Defender 150 Fayetteville Street, Suite 450 Raleigh, North Carolina 27601 Attorney for petitioner /s/ Felice McConnell Corpening FELICE McCONNELL CORPENING Assistant United States Attorney Criminal Division 310 New Bern Avenue Suite 800 Raleigh, NC 27601 Telephone: (919) 856-4582 Facsimile: (919) 856-4487 Email: felice.corpening@usdoj.gov NC Bar No. 21199 14 Case 7:08-cr-00072-F Document 47 Filed 04/30/12 Page 14 of 14 Case 4:08-cr-00077-FL Document 47-1 Filed 04/30/12 Page 1 of 4 Case 7:08-cr-00072-F Document 103 Filed 12/27/11 Page 1 of 4 Case 4:08-cr-00077-FL Document 47-1 Filed 04/30/12 Page 2 of 4 Case 7:08-cr-00072-F Document 103 Filed 12/27/11 Page 2 of 4 Case 4:08-cr-00077-FL Document 47-1 Filed 04/30/12 Page 3 of 4 Case 7:08-cr-00072-F Document 103 Filed 12/27/11 Page 3 of 4 Case 4:08-cr-00077-FL Document 47-1 Filed 04/30/12 Page 4 of 4 Case 7:08-cr-00072-F Document 103 Filed 12/27/11 Page 4 of 4