Opinion
Civil Case No. 2:13-cv-234 Criminal Case No. 2:10-cr-133
10-21-2014
Joseph E. Adams, Petitioner, v. United States of America, Respondent.
Magistrate Judge Deavers
OPINION AND ORDER
On September 26, 2014, the Magistrate Judge issued a Report and Recommendation ("R&R") recommending that Petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be dismissed as barred by the one-year statute of limitations. ECF No. 38. Petitioner objects. ECF No. 40. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the following reasons, Petitioner's objection is OVERRULED, the R&R is ADOPTED and AFFIRMED, and this action is DISMISSED as barred by the one-year statute of limitations under 28 U.S.C. § 2255(f).
This case involves Petitioner's January 12, 2011 conviction on three counts of bank robbery. The trial court imposed a sentence of 140 months' imprisonment. Petitioner did not file an appeal. On March 11, 2013, more than two years later, he filed the instant habeas corpus petition.
Under the provision of 28 U.S.C. § 2255(f)(1), which provides that the statute of limitations begins to run on the date on which the judgment of conviction becomes final, i.e., the date on which the time period expired to file an appeal, this case plainly is time-barred. Petitioner, however, objects to the Magistrate Judge's recommendation of dismissal of his § 2255 petition as untimely.
Petitioner objects to the Magistrate Judge's discussion regarding whether equitable tolling applies. He argues that this habeas corpus petition is timely under § 2255(f)(3), which provides that the statute of limitations begins to run from "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)(3). Specifically, Petitioner asserts that his claim of ineffective assistance of counsel relies on the Supreme Court's March 21, 2012, decision in Lafler v. Cooper, 132 S.Ct. 1376 (2012), and he filed his petition on March 11, 2013, within one year of that date. Objection, ECF No. 40, PAGEID ## 198-99.
"[E]very . . . circuit to consider the issue [has held that] neither Frye nor Cooper created a 'new rule of constitutional law' made retroactive to cases on collateral review by the Supreme Court." In re Liddell, 722 F.3d 737, 738 (6th Cir. 2013) (citing In re Graham, 714 F.3d 1181, 1183 (10th Cir. 2013) (per curiam); Gallagher v. United States, 711 F.3d 315, 315-16 (2d Cir. 2013) (per curiam); Williams v. United States, 705 F.3d 293, 294 (8th Cir. 2013) (per curiam); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012); In re King, 697 F.3d 1189, 1189 (5th Cir. 2012) (per curiam); Hare v. United States, 688 F.3d 878, 879, 881 (7th Cir. 2012))
This Court likewise concludes that the Supreme Court's decision in Lafler does not apply retroactively to cases on collateral review. Accordingly, this action cannot be considered timely under the provision of § 2255(f)(3).
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the foregoing reasons and for the reasons detailed in the R&R, Petitioner's objection, ECF No. 40, is OVERRULED. The R&R is ADOPTED and AFFIRMED, and this action is hereby DISMISSED as barred by the one-year statute of limitations under 28 U.S.C. § 2255(f).
IT IS SO ORDERED.
/s/_________
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
See also Stovall v. United States, No. 1:12-cv-377, 1:02-cr-32, 2013 WL 392467, at *2-3 (E.D. Tenn. Jan. 31, 2013) (same), citing the following cases:
See e.g., United States v. Lawton, 2012 WL 6604576, at *3 (10th Cir. Dec.19, 2012) (neither case announced a newly recognized right); Buenrostro v. United States, 697 F.3d 1137 (9th Cir. 2012) (neither Frye nor Lafler decided a new rule of constitutional law); In re King, 697 F.3d 1189 (5th Cir. 2012) (per curiam) (denying authorization to file successive § 2254 petition noting "that Cooper and Frye did not announce new rules of constitutional law because they merely applied the Sixth Amendment right to counsel to a specific factual context"); Hare v. United States, 688 F.3d 878, 879 (7th Cir. 2012) (noting these decisions were merely an application of the Strickland v. Washington and Hill v. Lockhart tests as the Supreme Court "repeatedly and clearly spoke of applying an established ruled to the present facts); In re Perez, 682 F.3d 930, 933 (11th Cir. 2012) ("Lafler and Frye are not new rules because they were dictated by Strickland").Id.; see also Smith v. United States, No. 1:13-cv-302, 2013 WL 3490662, at *2 (W.D. Mich. July 11, 2013) (same), citing the following cases: Appellate and district courts that have considered the question unanimously agree that Lafler and Frye did not recognize a new right. These courts reason that Lafler and Frye merely considered the Sixth Amendment right to counsel in a fact-specific context. In re Perez, 682 F.3d 930, 933 (11th Cir. 012) (per curiam) ( "Lafler and Frye are not new rules because they are dictated by Strickland." ); Hare v. United States, 688 F.3d 878, 879 (7th Cir.2012) (noting that the language in Lafler and Frye repeatedly spoke of "applying an established rule to the present facts"); In re King, 697 F.3d 1189, 1189 (5th Cir. 2012) (per curiam) ( "Cooper and Frye did not announce new rules of constitutional law because they merely applied the Sixth Amendment right to counsel to a specific factual context."); Buenrostro v. United States, 697 F.3d 1137, 1139 (9th Cir.2012) (holding that Lafler and Frye did not create a new constitutional rule); Gallagher v. United States, 711 F.3d 315, 315 (2nd Cir.2013) (per curiam) ("Neither Lafler or Frye announced a 'new rule of constitutional law' ...."); United States v. Ocampo, WL 317621, — F.Supp.2d — (E.D. Mich.2013) ("The right recognized by the Supreme Court in Lafler v. Cooper and Missouri v. Frye did not announce a 'newly recognized' right made retroactively applicable to cases on collateral review."). Id.