United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING § 2255
GUIROLA, JR., UNITED STATES DISTRICT JUDGE
THE COURT is the  Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 filed by
Petitioner Gregory P. Warren. The Government filed a
response, and Warren filed a reply. After reviewing the
submissions of the parties, the record in this matter, and
applicable law, the Court finds that Warren's Motion
should be denied as untimely.
convicted Warren of conspiracy to commit mail fraud, wire
fraud, identity theft, and aggravated identity theft, and
numerous counts of each substantive underlying offense. This
Court sentenced Marshall to a term of imprisonment of 204
months, with 4 years' supervised release, and ordered him
to pay a fine in the amount of $100, 000. The Fifth Circuit
affirmed his conviction. See United States v.
Warren, 728 Fed.Appx. 249 (5th Cir. 2018). His
conviction became final when the 90-day period for filing a
petition for writ of certiorari with the Supreme Court
expired on June 12, 2018.
filed the instant  Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence on June 20,
2019. His Motion raises three grounds for
relief, all premised upon having received ineffective
assistance of counsel during trial and at sentencing. He says
trial counsel “entered into an unwritten joint defense
agreement with the codefendant, then revealed to lead trial
counsel and lead defendant, Watts, attorney-client privileged
communications that was [sic] later used by co-defendants
against Warren at trial.” (Mot. Vacate 5, ECF No. 523.)
He also maintains that this “unwritten joint defense
agreement” created “an actual conflict of
interest” for his counsel. (Id. at 6.) And he
argues that his counsel “failed to move for severance
and a mistrial after it became apparent that the joint
defense agreement had been violated by Watts and the other
codefendants, and it became apparent that the strategy of the
co-defendants was to blame Warren for the offense.”
(Id. at 8.) Alternatively, Warren concedes the
untimeliness of his Motion, but argues that it should be
heard anyway because he is actually innocent.
response, the Government asserts that the Court need not
reach the merits of Warren's Motion because the grounds
raised are time-barred by the one-year statute of
limitations. Warren's reply brief maintains that the
limitation period should be equitably tolled because he has
been diligently pursuing his rights and he is proceeding
one-year statute of limitations applies to Motions under
§ 2255. 28 U.S.C. § 2255(f). The one-year
limitation period runs from the latest of (1) the date the
judgment of conviction becomes final, (2) the date on which
an illegal, government-created impediment to making the
motion is removed, (3) the date on which a right asserted was
newly recognized by the Supreme Court for the first time -
provided that right was made retroactively applicable to
cases on collateral review, or (4) the date on which facts
supporting the claim presented could have been discovered
through the exercise of due diligence. Id.
Warren's conviction became final on June 12, 2018 when
his time to file a Petition for Writ of Certiorari expired.
Because none of the other provisions of § 2255(f) apply
to Warren's circumstances, his deadline to file a timely
§ 2255 motion was June 12, 2019. The Motion filed June
20, 2019 is untimely.
contends, however, that the Court should equitably toll the
one-year limitations period to preserve his claim. The Fifth
Circuit “has concluded that the one-year limitations
period of the Anti-Terrorism and Effective Death Penalty Act
(‘AEDPA'), as codified in 28 U.S.C. § 2255, is
not jurisdictional and, therefore, is subject to equitable
tolling.” United States v. Petty, 530 F.3d
361, 364 (5th Cir. 2008) (citing United States v.
Wynn, 292 F.3d 226, 230 (5th Cir. 2002)). Therefore, a
district court has the discretion to toll the AEDPA
limitations period. Id.
tolling is permitted “only in rare and exceptional
circumstances, ” and Warren bears the burden of
establishing that it is appropriate in this case.
Id. at 364-65 (internal quotation marks omitted). To
satisfy this burden, Warren “must show (1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' of timely
filing his § 2255 motion.” Id. (quoting
Lawrence v. Florida, 549 U.S. 327, 336 (2007)).
simply asserts that he has been diligently pursuing his
rights, but he offers no elaboration, and the docket provides
no evidence of such diligence. After the Fifth Circuit issued
its opinion affirming his conviction, the docket reflects no
activity until this Motion was received on June 24, 2019.
Even assuming that Warren has been diligent, no extraordinary
circumstance hindered his ability to timely file this Motion.
He emphasizes his pro se status, his incarceration,
and says that he “found it difficult to perform legal
research.” (Reply 6, ECF No. 526.) But these
circumstances are in no way extraordinary; countless
individuals timely file pro se § 2255 motions
under similar circumstances. See Petty, 530 F.3d at
365-66 (“Proceeding pro se is alone
insufficient to equitably toll the AEDPA statute of
limitations. . .. Further, the lack of legal training,
ignorance of the law, and unfamiliarity with the legal
process are insufficient reasons to equitably toll the AEDPA
statute of limitations.”) (citations omitted).
“Likewise, ineffective assistance of counsel is
irrelevant to the tolling decision because a prisoner has no
right to counsel during post-conviction proceedings.”
Id. at 366.
alternatively argues that he is actually innocent. (Reply
6-7, ECF No. 526.) He says that “he [was] only
convicted because his attorney acted in a manner adverse to
his interests during trial by entering into an unwritten
defense agreement with the lead defendant in this case,
in Schlup v. Delo, 513 U.S. 298 (1995) and further
explained in House v. Bell, 547 U.S. 518 (2006), the
actual innocence gateway provides a means by which a habeas
petitioner's constitutional claims may be considered on
their merits despite a procedural bar to their consideration.
See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
In Schlup and House, a convincing showing
of actual innocence enabled the habeas petitioners to
overcome a procedural bar to consideration of their
constitutional claims. See Id. More recently, the
United States Supreme Court in McQuiggin v. Perkins
held that “actual innocence, if proved, serves as a
gateway through which a petitioner may pass whether the
impediment is a procedural bar, as it was in Schlup
and House, or as in this case, expiration of the
statute of limitations.” Id.
To be credible, a claim of actual innocence requires
petitioner to support his allegations of constitutional error
with new reliable evidence - whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence - that was not presented at trial.
Because such evidence is obviously unavailable in ...