Opinion
Civil Action 5:24-CV-00076-DCR-EBA CRIMINAL ACTION 5:18-CR-00133-DCR-EBA-1
08-01-2024
UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT, v. KEVIN S. ABNEY, DEFENDANT/PETITIONER.
REPORT AND RECOMMENDATION
Edward B. Atkins, United States Magistrate Judge
INTRODUCTION
This matter is before the Court on the 28 U.S.C. § 2255 motion of Kevin S. Abney, who seeks to vacate, set aside, or correct his conviction and sentence. [R. 77]. The United States filed a Response opposing the petition [R. 80], after which Abney filed for leave to amend his § 2255 petition to add an additional argument to his motion [R. 82] and the USA responded to address this new argument. [R. 84]. Abney then filed a Reply in support of his petition. [R. 88]. After reviewing the record and for the reasons explained below, the undersigned will recommend Abney's § 2255 petition be denied.
FACTS AND PROCEDURAL HISTORY
On December 6, 2018, Petitioner Abney entered into a plea agreement to plead guilty to possessing with intent to distribute fentanyl, in violation of 21 U.S.C. § 841(a)(1), possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [R. 17]. As part of this plea agreement, Abney agreed to waive “the right to attack collaterally the guilty plea, conviction, and sentence” except for any claims for ineffective assistance of counsel. [Id. at pg. 5]. Due to his three convictions in Kentucky for complicity in first-degree robbery, Abney was designated as an Armed Career Criminal (ACC). [R. 29 at pg. 7]. The Court then sentenced Abney to 240 months of imprisonment. [R. 26].
Abney filed an appeal with the Sixth Circuit Court of Appeals and argued “that the first-degree robbery convictions cannot render him an armed career criminal because those convictions arise from a single offense.” United States v. Abney, 817 Fed.Appx. 185, 186 (6th Cir. 2020). However, the Sixth Circuit affirmed the Court's judgment and rendered the opinion on June 16, 2020. Id. Abney then petitioned the Supreme Court for a writ of certiorari, which was denied on January 25, 2021. [R. 56]. Petitioner then filed his § 2255 petition on March 21, 2024. [R. 73]. The undersigned directed Abney to file his petition using the correct form [R. 76] and an amended § 2255 petition was filed on April 18, 2024. [R. 77]. The USA then filed its Response opposing Abney's § 2255 petition on timeliness grounds and the fact that Abney previously waived his right to collaterally attack his sentence in his plea agreement. [R. 80]. Petitioner then filed for leave to amend his § 2255 petition to include a new argument based on the Supreme Court's decision in Erlinger v. United States, 144 S.Ct. 1840 (2024). [R. 82]. The USA responded to this motion, stating it did not oppose the motion to amend but that Abney's new argument should otherwise fail on its merits. [R. 84]. The Court granted the motion to amend and directed Abney to file a Reply in support of his petition addressing the USA's arguments. [R. 85; R. 87]. Abney has now filed his Reply [R. 88], therefore the matter is now ripe for review.
STANDARD OF REVIEW
To begin with, the Court recognizes that Abney is proceeding pro se in this matter and construes his petition more leniently. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Castro v. United States, 540 U.S. 375, 381-83 (2003). A motion brought pursuant to 28 U.S.C. § 2255 is a collateral attack on a conviction or sentence. A prisoner has a statutory right to collaterally attack his conviction or sentence. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). For a federal prisoner to prevail on such a claim, he bears the burden of showing that: (1) his conviction resulted from an error of constitutional magnitude; (2) his sentence was imposed outside the statutory limits; or (3) an error of fact or law occurred that was so fundamental as to render the entire proceeding invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003). If the prisoner alleges constitutional error, he must establish by a preponderance of the evidence that the error “had a substantial and injurious effect or influence on the proceedings.” Watson, 165 F.3d at 488 (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). Alternatively, if he alleges a non-constitutional error, he must establish “a fundamental defect which inherently results in a complete miscarriage of justice . . . an error so egregious that it amounts to a violation of due process.” Id. at 488 (citing United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)). Still, a petitioner's claims must meet certain procedural requirements to justify review.
ANALYSIS
Importantly, the United States asserted that Abney's petition should be dismissed on timeliness grounds. [R. 80]. So, the Court must determine whether Abney's petition is timely filed. Daniels v. United States, 532 U.S. 374, 381 (2001) (“Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim.”); see also United States v. Olano, 507 U.S. 725, 731 (1993).
A
Under the standards set forth under the Antiterrorism and Effective Death Penalty Act (AEDPA), “state and federal prisoners have a one-year limitations period in which to file a habeas corpus petition.” Johnson v. United States, 457 Fed.Appx. 462, 464 (6th Cir. 2012). Specifically, pursuant to 28 U.S.C. § 2255(f):
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--
(1) the date on which the judgment of conviction becomes final;
(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 governmental action;
(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)(1)-(4). “As a general matter, convictions become final upon conclusion of direct review.” Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004). As the Sixth Circuit has acknowledged, “[i]f a § 2255 movant pursued his direct appeal through to a petition for certiorari in the Supreme Court, direct review is concluded when the Supreme Court either denies the petition or decides the case.” United States v. Cottage, 307 F.3d 494, 498 (6th Cir. 2002) (citing Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001)). Therefore, Abney's conviction became final on January 25, 2021, when the Supreme Court denied his petition for a writ of certiorari. [R. 56].
Here, Abney primarily relies upon the Supreme Court's decisions in United States v. Davis, 588 U.S. 445 (2019) and United States v. Wooden, 595 U.S. 360 (2022) for his arguments that his prior convictions for complicity to commit robbery are no longer considered crimes of violence and that his three prior convictions should be counted as one conviction and he is therefore entitled to relief under 28 U.S.C. § 2255. [R. 77 at pgs. 4-5]. Abney also argues that these cases present newly recognized issues and that these decisions are retroactive. [R. 77 at pg. 10]. However, as 28 U.S.C. § 2255(f)(1)(3) makes clear, Abney was still required to file his § 2255 petition to assert his rights pursuant to these cases within a year of these rights being recognized by the Supreme Court. See also United States v. Kelley, No. CR 2:12-016-DCR, 2020 WL 3520276, at *2 (E.D. Ky. June 29, 2020) (movant's § 2255 petition was held to be untimely when the petition was filed one day past the one-year limitations period established by 28 U.S.C. § 2255(f)(3)). Davis was decided in 2019 and Wooden was decided in 2022, meaning that Abney's petition was filed nearly five and two years after these cases were respectively decided. Finally, as explained below, Abney waived his right to collaterally attack his conviction and sentence and he has presented no evidence to assert that this waiver is invalid. Therefore, Abney's claims pursuant to Davis and Wooden are untimely and must be denied.
B
Nonetheless, even untimely filed petitions may benefit from equitable tolling in limited circumstances.1 Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004) (citing Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001)). Specifically, equitable tolling permits federal courts to review a time-barred habeas petition “provided that ‘a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.'” Robinson v. Easterling, 424 Fed.Appx. 439, 442 (6th Cir. 2011), cert. denied, 565 U.S. 964 (2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). To be entitled to equitable tolling, a petitioner must show: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Holland v. Florida, 560 U.S. 631, 649 (2010). And the petitioner “bears the burden of demonstrating that he is entitled to equitable tolling.” McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003) (citation omitted). However, Abney never argues that he is entitled to equitable tolling. So, the Court cannot consider whether he is entitled to equitable tolling.
C
One of Abney's claims, however, is not barred the statute of limitations. Abney also argues that he is entitled to relief under Erlinger v. United States, 144 S.Ct. 1840 (2024) because the Supreme Court found in that case that Armed Career Criminal Act's direct occasions requirement needed to be determined by a jury, not a judge and because that did not occur in his case, Abney argues he should be resentenced. [R. 82; R. 88]. Because Erlinger was decided in 2024, Abney's claims based on this case are timely. However, his argument must still fail for two reasons.
To begin with, Abney has waived his right to collaterally attack his conviction. [R. 17 at pg. 5]. ‘“It is well settled that a defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement.”' United States v. Griffin, 854 F.3d 911, 914 (6th Cir. 2017) (quoting United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001)). “It follows that a defendant may waive his right to bring future postconviction challenges, which are not constitutionally required, so long as the waiver is knowing and voluntary.” Portis v. United States, 33 F.4th 331, 335 (6th Cir. 2022) (citing Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999)). Further, “waivers of the right to bring postconviction challenges remain enforceable after changes in law. . . Subsequent ‘developments in the law' that would make a right to bring a postconviction challenge more valuable do not ‘suddenly make the plea involuntary or unknowing or otherwise undo its binding nature.”' Id. (quoting United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005)). Here, Abney unquestioningly waived his right to collaterally attack his guilty plea, conviction, and sentence, excepting any claims for ineffective assistance of counsel. [R. 17 at pg. 5]. Abney has presented no evidence that he involuntarily entered into this plea agreement and the Court properly conducted a Rule 11 colloquy at Abney's re-arraignment hearing and determined that his guilty plea was a knowing and voluntary plea. [R. 37 at pg. 38]. Nor has Abney asserted an ineffective assistance of counsel claim. Therefore, Abney has waived his right to collaterally attack his conviction and sentence and these claims must fail.
Further, even if the undersigned was to ignore Abney's waiver, Petitioner has not demonstrated that Erlinger is retroactive. The Supreme Court succinctly explained its retroactivity principles in Edwards v. Vannoy, 593 U.S. 255 (2021) with the following summation:
To summarize the Court's retroactivity principles: New substantive rules alter “the range of conduct or the class of persons that the law punishes.” Summerlin, 542 U.S. at 353, 124 S.Ct. 2519. Those new substantive rules apply to cases pending in trial courts and on direct review, and they also apply retroactively on federal collateral review. New procedural rules alter “only the manner of determining the defendant's culpability.” Ibid. (emphasis deleted). Those new procedural rules apply to cases pending in trial courts and on direct review. But new procedural rules do not apply retroactively on federal collateral review.Id. at 276. Here, the new rule in Erlinger does not appear to alter the range of conduct or the class of person who is punished under a specific law but appears to be a new procedural rule. In fact, the Supreme Court has previously held that the decision that a determination be made by a jury rather than a judge is to be considered a procedural rule. See Schriro v. Summerlin, 542 U.S. 348 (2004). Abney has failed to otherwise demonstrate that the Supreme Court's holding in Erlinger should retroactively apply to this case, therefore this argument must fail. Therefore, Abney's claims pursuant to the Erlinger decision must fail because Abney waived his right to collaterally attack his conviction and sentence and Erlinger does not retroactively apply to his case.
D
A Certificate of Appealability may issue where a movant made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires a movant to demonstrate that “reasonable jurists would find that the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-Elv. Cockrell, 123 S.Ct. 1029, 1039-40 (2003). The reviewing court must indicate which specific issues satisfy the “substantial showing” requirement. 28 U.S.C. § 2253(c)(3); Bradley v. Birkett, 156 Fed.Appx. 771, 774 (6th Cir. 2005). “When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a Certificate of Appealability should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
Here, Abney failed to comply with the statute of limitations and failed to demonstrate that equitable tolling was appropriate here. He further failed to demonstrate that the Erlinger case is retroactive and that his waiver of his right to collaterally attack his sentence and conviction was improper. The Court also believes that reasonable jurists would not find its determination on these issues debatable. Therefore, the undersigned will recommend that the District Court deny a Certificate of Appealability.
CONCLUSION
Abney petitions the Court for a writ of habeas corpus under § 2255. [R. 77]. However, his petition is untimely and otherwise barred. Therefore, this Court will recommend the District Court deny Abney's (1) § 2255 petition and (2) Certificate of Appealability, if he requests one.
RECOMMENDATION
Upon review of the record, and for the reasons stated herein, and in accordance with Rule 10 of the Rules Governing Section 2255 Habeas Cases, IT IS RECOMMENDED that:
1. Abney's Section 2255 petition [R. 77] be DISMISSED WITH PREJUDICE; and
2. A Certificate of Appealability be DENIED as to all issues raised, should Abney sorequest.
The parties are directed to 28 U.S.C. § 636(b)(1) for a review of appeal rights governing this Recommended Disposition. Particularized objections to this Recommended Disposition must be filed within fourteen days from the date of service thereof or further appeal is waived. United States v. Campbell, 261 F.3d 628, 632 (6th Cir. 2001); Thomas v. Ann, 728 F.2d 813, 815 (6th Cir. 1984). General objections or objections that require a judge's interpretation are insufficient to preserve the right to appeal. Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004); Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). A party may file a response to another party's objections within fourteen days after being served with a copy thereof. 28 U.S.C. § 636(b)(1)(C); Fed. R. Crim. P. 59(b)(1).