United States District Court, S.D. Mississippi, Western Division
MEMORANDUM OPINION AND ORDER
BRAMLETTE UNITED STATES DISTRICT JUDGE
August 19, 2009, Clarence Blevins was found guilty of the
offense of Solicitation to Commit a Crime of Violence, 18
U.S.C. § 373(a). On November 20, 2009, he was sentenced
by this Court to a term of 240 months, to run consecutively
to an undischarged term of imprisonment imposed in No.
CR-98-B-038-NE in the Northern District of Alabama. (Docket
Entry 46). Blevins filed a Notice of Appeal on November 20,
2009, and his conviction was affirmed by the Fifth Circuit
Court of Appeals on October 6, 2010.
7, 2016, Blevins filed a Letter Motion in Criminal No.
5:09-cr-6, inquiring if he was entitled to any benefit in
light of Johnson v. United States, 135 S.Ct. 2551
(2015), which “held that the Armed Career Criminal Act
(“ACCA”) [was] [u]nconstitutional[ly] vague under
the residual clause.” The Court construed the motion as
a motion to vacate, set aside or correct sentence pursuant to
28 U.S.C. § 2255. However, the government had moved to
dismiss the indictment against Blevins without prejudice in
Criminal No. 5:09-cr-6 on June 30, 2009. (Docket Entry 14 in
Criminal No. 5:09-cr-6). On July 1, 2009, the Court dismissed
the indictment against Blevins without prejudice in Criminal
No. 5:09-cr-6. (Docket Entry 15 in Criminal No. 5:09-cr-6).
Superseding Indictment was filed in Criminal No. 5:09-cr-6 on
July 21, 2009 (docket entries 16 and 17). On July 27, 2009,
the Court entered an Administrative Order showing that the
original indictment had been dismissed by the government,
thereby closing Criminal No. 5:09-cr-6. (Docket Entry 20 in
Criminal No. 5:09-cr-6). The Court further held:
On June 30, 2009, prior to dismissing the indictment, the
United States obtained a second Criminal Complaint against
this defendant (3:09mj574 JCS). The grand jury then returned
a second indictment against this defendant on July 21, 2009.
Due to an incorrect criminal complaint number being
referenced on the criminal case cover sheet filed with the
Clerk of Court, as well as a designation of First Superseding
Indictment on the face of the indictment, the Clerk of Court
assigned this case the same criminal number as was assigned
to the previously dismissed case. Based on the foregoing, IT
IS ORDERED that the indictment returned by the Grand Jury on
July 21, 2009 be given a new criminal number which should be
connected in the ECF system to the Criminal Complaint
obtained on June 30, 2009 with number 3:09mj574 JCS.
(docket entry 20).
Clerk of Court closed criminal case 5:09-cr-6 on July 27,
2009, thereby terminating defendant Blevins as well as all
deadlines and all motions. (Minute entries of July 27, 2009).
The Clerk of Court also opened a new criminal case,
5:09-cr-15, based on the First Superseding Indictment.
Judgment was rendered in Blevins' case on November 20,
2009 (docket entry 46), and on the same day Blevins appealed
to the Fifth Circuit Court of Appeals (docket entry 47). The
Fifth Circuit affirmed Blevins' conviction on October 6,
7, 2016, Blevins filed his Letter Motion inquiring if he
might “be able to benefit from” Johnson v.
United States, 135 S.Ct. 2551 (2015) (Docket Entry 21 in
criminal case 5:09-cr-6), and an identical motion in criminal
case 5:09-cr-15. The Court construed the motions as motions
to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255. Since there was no Judgment nor Sentence
in criminal case 5:09-cr-6, Blevins' motion in that case
was denied as moot on April 7, 2017 (Docket Entry 22 in
criminal case 5:09-cr-6).
Court now addresses Blevins' motion in criminal case
5:09-cr-15. The Court construes the motion as a motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255, and shall direct the Clerk of Court to open a
new civil action (Nature of Suit: 510 Prisoner Vacate
Sentence) and to reference the above styled criminal case
(5:09-cr-15). Blevins also seeks appointment of counsel.
However, Rule 8(c) of the Rules Governing Section 2255
Proceedings for the United States District Courts provides
that the Court must appoint an attorney to represent a
petitioner if it concludes that “an evidentiary hearing
is warranted.” No. such conclusion has been reached in
this case, so the request for counsel is premature. See
United States v. Nichols, 30 F.3d 35, 36 (5th
Cir. 1994)(“Whether to appoint counsel to represent a
defendant in a § 2255 proceeding is committed to the
sound discretion of the district court.”).
Court observes that Blevins did not conclusively characterize
his letter to the Court as a § 2255 motion. However, to
avoid overly stringent application of labeling requirements,
federal courts will occasionally “ignore the legal
label that a pro se litigant attaches to a motion
and re-characterize the motion in order to place it within a
different legal category.” Castro v. United
States, 540 U.S. 375, 381 (2003). But a district court
may not re-characterize a pro se litigant's
motion as a first § 2255 motion, unless the court
“notif[ies] the pro se litigant that it
intends to re-characterize the pleading, warn[s] the litigant
that this re-characterization means that any subsequent
§ 2255 motion will be subject to the restrictions on
‘second or successive' motions, and provide[s] the
litigant an opportunity to withdraw the motion or to amend it
so that it contains all the § 2255 claims he believes he
has.” Id. at 383. “If the court fails to
do so, the motion cannot be considered to have become a
§ 2255 motion for purposes of applying to later motions
the law's ‘second or successive'
important for the defendant to give clear notice of his
intention to file the instant motion as a § 2255 motion
because, if the court characterizes it as such, it will most
likely be dismissed on procedural grounds or denied on
substantive grounds. Section 2255(f) imposes a one-year
period of limitation to file a § 2255
motion. In the instant case, the relevant date for
determining the limitation period would be either “the
date on which the judgment of conviction becomes final”
or “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)(1), (3). First, Blevins' motion would most
likely be barred under subsection (1) because he did not file
it within a year of the date on which the judgment of his
conviction became final (October 6, 2010). 28 U.S.C. §
the defendant's letter motion was filed on July 7, 2016,
well beyond one year after his conviction became final.
Additionally, the defendant's letter motion would be
barred because he filed it more than a year after Johnson
v. United States, 135 S.Ct. 2551 (2015), was decided.
Johnson was decided on June 26, 2015, and
Blevins' letter motion was filed on July 7, 2016. Section
2255(f)(3) provides that a petitioner has a year to file a
§ 2255 motion after “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.” Here, the defendant asserts that
Johnson applies to his case. However, even if
Johnson applied to his case (which it does
not), the defendant's motion is untimely.
Specifically, the defendant filed the instant letter motion
on July 7, 2016, over a year after the date Johnson
was decided (June 26, 2015).
if the Court characterizes Blevins' letter as a §
2255 motion, equitable tolling will most likely be
unavailable. “Equitable tolling of petitions for
collateral review is available only when a defendant
demonstrates (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”
Whiteside v. U.S., 775 F.3d 180 (4th Cir.
2014)(citing Holland v. Florida, 560 U.S. 631, 649
(2010)(internal quotation marks omitted)). Specifically,
“equitable tolling is appropriate 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.'” Whiteside, 775
F.3d 180 (4th Cir. 2014)(quoting Rouse v.
Lee, 339 F.3d 238, 246 (4th Cir. 2003)).
Here, Blevins has failed to demonstrate that he has been
pursuing his rights diligently, and he has failed to assert
any extraordinary circumstances that prevented him from
timely filing. Therefore, even if the Court were to
characterize the defendant's letter as a § 2255
motion, it would most likely be procedurally barred. On the
other hand, if the Court characterizes Blevins' letter as
a § 2255 petition, it will most likely be dismissed,
even if it is not procedurally barred, because it has no
merit. Specifically, Blevins' claims have no merit
because U.S.S.G. § 2L1.2(b)(1) was not used in the
calculation of his sentence. (Docket entry 45).
foregoing reasons, the Court shall direct the defendant to
give notice of his intention of filing his letter as a §
2255 motion or his intention to amend or withdraw his motion.
Additionally, the Court shall direct the Clerk of Court to