Opinion
CV 23-01530 PHX SMB (CDB)
10-25-2023
Victor Deshone Johnson, Movant, v. United States of America, Respondent.
CAMILLE D. BIBLES, UNITED STALES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN M. BRNOVICH, JUDGE
On July 31, 2023, Movant Victor Johnson docketed a pro se Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (Civil Docket “CV” ECF No. 1). Respondent filed a response on September 19, 2023, and the time allowed Movant to file a reply has expired. At the time the § 2255 motion was filed Johnson was in the custody of the Arizona Department of Corrections, Rehabilitation, and Reentry in Tucson, Arizona. The Federal Bureau of Prisons inmate locator indicates Johnson was released from federal custody on February 24, 2023.
I. Background
On July 15, 2021, at the conclusion of a four-day jury trial, Johnson was found guilty on one count of conspiracy to possess with intent to distribute a controlled substance and three counts of possession with intent to distribute a controlled substance. (CR ECF No. 155, 162). On November 8, 2021, Johnson was sentenced to concurrent terms of 70 months' imprisonment on each of the four counts of conviction, followed by a term of 48 months of supervised release. (CR ECF No. 181).
Johnson did not file a notice of appeal in the Ninth Circuit Court of Appeals.
On March 2, 2022, Johnson was sentenced to a term of five years' imprisonment in a state criminal matter, to be served concurrently with his federal sentence, with credit for 107 days of presentence time served; the state court advised Johnson he would not receive credit on his state sentence for any time in federal custody prior to his federal conviction. (ECF No. 5 at 7; ECF No. 5-1 at 2-4; ECF No. 5-3).
The Arizona Department of Corrections, Rehabilitation and Reentry's inmate data search website indicates Johnson's current release date is December 12, 2025.
On July 31, 2023, Johnson filed the instant motion to vacate, set aside, or correct sentence by a person in federal custody, seeking relief pursuant to 28 U.S.C. § 2255. As noted supra, Johnson was not then in federal custody, having been released on February 24, 2023. In his § 2255 motion he states “Petitioner feels the [federal] sentence was fair but is ask[ing] for concurrency with State of Arizona conviction.” (CV ECF No. 1). Johnson further asserts he has a sleep disorder. (ECF No. 1 at 5). He also alleges his right to a speedy trial was violated “due to Co-vid-19.” (ECF No. 1 at 6). Johnson contends he “sat in federal custody for two years before [illegible] this, time should be run concurrent with, State of Arizona sentence, changing release, 12-20-25 new release, should be December of 2023.” (Id.). With regard to the statute of limitations, Johnson asserts: “This motion is timely do [sic] to covid no law [library] time no legal help.” (ECF No. 1 at 9).
On November 1, 2021, when Johnson was sentenced by the Court to 70 months' imprisonment, Johnson had been detained for 1250 days (41 months). (CR ECF No. 170 at 2). Accordingly, when he was released from federal custody on February 24, 2023, Johnson had served 56 months and 24 days.
II. Analysis
A federal court may vacate, set aside, or correct a federal prisoner's sentence if the sentence was imposed in violation of the Constitution or laws of the United States, the court was without jurisdiction to impose the sentence, the sentence was in excess of the maximum authorized by law, or if the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). See also, e.g., United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016); United States v. Self, 100 F.Supp.3d 773, 776 (D. Ariz. 2015).
Section 2255 provides that a “1-year period of limitation shall apply to a motion under this section.” With regard to Johnson's § 2255 motion, the statute of limitations began to run from the date on which the judgment of conviction became final. See 28 U.S.C. § 2255(f). When no notice of appeal is filed, the judgment of conviction becomes final when the time for filing a notice of appeal expires. See United States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015); United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001). A federal criminal defendant's notice of appeal is due fourteen days after judgment is entered. See Fed. R. App. P. 4(b)(1)(A). Judgment was entered against Johnson on November 8, 2021 (CR ECF No. 181), and accordingly Johnson's conviction became final on November 22, 2021, when the time expired for filing a notice of appeal. Therefore, the one-year statute of limitations on Johnson's § 2255 action began running on November 23, 2021, and expired on November 23, 2022. Johnson filed his § 2255 motion on July 31, 2023, approximately eight months after the statute of limitations expired, and therefore his § 2255 motion is untimely.
The statute of limitations contained in § 2255 is subject to equitable tolling. E.g., United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004).
A § 2255 movant is entitled to equitable tolling “only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” The movant must show that the extraordinary circumstances “‘were the cause of his untimeliness.'”United States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011) (citations omitted). A § 2255 movant bears the burden of proof on their entitlement to equitable tolling. See Gilbert, 807 F.3d at 1201-02.
Johnson contends he has had only limited access to a law library, which does not establish an “extraordinary circumstance” which prevented him from timely filing his § 2255 motion. The federal courts have generally held prison limitations on access to a law library do not constitute extraordinary circumstances warranting equitable tolling. See Eschief v. United States, 2022 WL 1542085, at *5 (D. Ariz. Feb. 18, 2022) (collecting cases). Nor has Johnson established he was diligent in pursuing post-judgment relief; he failed to pursue an appeal and did not pursue any other remedy with regard to his federal sentence until eight months after the statute of limitations regarding a § 2255 motion expired.
Additionally, Johnson has procedurally defaulted any claim that his federal sentence should be served concurrently with any sentence imposed in a state criminal matter or that he was denied his right to a speedy trial, issues which could have been raised on appeal. “Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998) (internal quotation marks and citation omitted). With certain exceptions, (for example, ineffective assistance of counsel claims), a petitioner may not raise a claim in a § 2255 motion that he failed to raise on direct appeal. See, e.g., Massaro v. United States, 538 U.S. 500, 504 (2003). Because Johnson did not appeal his conviction or sentence, he has procedurally defaulted a claim that his federal sentence should be served concurrently with any sentence imposed by the state court and any claim that he was denied his right to a speedy trial. See United States v. Pollard, 20 F.4th 1252, 1255 (9th Cir. 2021) (“Pollard's [§2255] motion is procedurally defaulted since he did not appeal his conviction”); Thompson v. United States, 995 F.2d 233, 233 (9th Cir. 1993). To excuse a procedural default, a defendant must show cause for why he did not object to or directly appeal the alleged errors and actual prejudice resulting from the error. Pollard, 20 F.4th at 1255. In his § 2255 motion Johnson makes no argument regarding his failure to take an appeal, and Johnson did not file a reply in this matter addressing his procedural default of his claims for relief. Accordingly, Johnson's claims are procedurally defaulted without excuse and should be denied.
III. Conclusion
Johnson failed to file his § 2255 motion within the applicable statute of limitations. Johnson has not demonstrated he is entitled to equitable tolling of the statute of limitations. Additionally, Johnson procedurally defaulted his claims by failing to raise the issues on appeal, and he has not established cause for or prejudice arising from his procedural default of his claims.
IT IS THEREFORE RECOMMENDED that the Motion to Vacate, Set Aside or Correction Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (CV ECF No. 1), be denied.
This report and recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen (14) days from the date of service of this recommendation within which to file specific written objections with the Court. See Fed.R.Civ.P. 72(b)(2). Thereafter, the parties have 14 days within which to file a response to the objections. Id.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.