Stewart v. United States

Full title: GLEN ALLEN STEWART, JR., Petitioner, v. UNITED STATES OF AMERICA…

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

Date published: Jul 17, 2017

No. 5:14-CR-90-FL-1 (E.D.N.C. Jul. 17, 2017)

Opinion

No. 5:14-CR-90-FL-1 No. 5:16-CV-432-FL

07-17-2017

GLEN ALLEN STEWART, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.

LOUISE W. FLANAGAN United States District Judge

ORDER

This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 151) and petitioner's motion to amend (DE 169). Also before the court is the government's motion to dismiss, in part, and stay, in part (DE 162). The issues raised are ripe for ruling. For the reasons that follow, this court denies petitioner's motion to vacate, denies petitioner's motion to amend, and grants, in part, and denies as moot, in part, the government's motion.

BACKGROUND

On May 13, 2014, petitioner was charged in a single-count indictment with being a convicted felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g) and 924. At his arraignment, held on August 12, 2014, petitioner pleaded not guilty. Following a three-day trial, petitioner was found guilty.

On January 6, 2015, this court sentenced petitioner to 120 months imprisonment. Petitioner appealed this court's judgment. On October 13, 2015, the Fourth Circuit Court of Appeals affirmed. See United States v. Stewart, 628 F. App'x 179 (4th Cir. 2015). Petitioner filed a petition for certiorari with the Supreme Court, and it was denied on February 29, 2016. See Stewart v. United States, 136 S. Ct. 1227 (2016).

On August 7, 2015, petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255. The motion was voluntarily dismissed on April 26, 2016. On June 20, 2016, petitioner filed the instant § 2255 motion, alleging that his trial counsel provided ineffective assistance in the following respects: 1) waived his speedy trial rights; 2) stipulated to prior convictions; 3) failed to file a motion to quash; 4) failed to adequately consult; 5) was not adequately qualified; 6) failed to adequately cross-examine; 7) failed to object to jury instructions; and 8) failed to object to testimony. In his ninth claim, petitioner argues that the government engaged in prosecutorial misconduct. Petitioner contends in his tenth claim that U.S.S.G. § 2K2.1 is invalid following the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). In his eleventh and final claim, petitioner alleges that his appellate counsel provided ineffective assistance by failing to address trial counsel's performance on direct appeal.

On October 17, 2016, the government filed its motion to dismiss, in part, and stay, in part. The government argues that petitioner's Johnson claim should be stayed pending the Supreme Court's decision in Beckles v. United States, No. 15-8544. The government further argues that the remainder of petitioner's claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). On June 14, 2017, petitioner filed his motion to amend, in which he seeks to add a claim under Mathis v. United States, 136 S. Ct. 2243 (2016).

COURT'S DISCUSSION

A. Standard of Review

A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." Id. § 2255(b). B. Analysis

1. Motion to Vacate

a. Petitioner fails to state a claim of ineffective assistance of counsel.

Petitioner has raised nine ineffective assistance of counsel claims. See Mot. Vacate Mem. (DE 151-1). In order to establish ineffective assistance of counsel, a petitioner must satisfy a two-pronged test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong, a petitioner must show that his counsel's representation "fell below an objective standard of reasonableness." Id. at 688. The court must be "highly deferential" to counsel's performance and must make every effort to "eliminate the distorting effects of hindsight." Id. at 689. Therefore, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. The second prong requires a petitioner to show that he was prejudiced by the ineffective assistance by showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This court will apply the Strickland standard to each of petitioner's ineffective assistance of counsel claims in turn.

i. Waived speedy trial rights

In his first claim, petitioner alleges that his trial counsel provided ineffective assistance by waiving his speedy trial rights, without his consent, on two occasions. Mot. Vacate Mem. (DE 151-1) at 3-4. Petitioner concludes that his trial counsel's actions prejudiced him because any amount of jail time has Sixth Amendment significance and is prejudicial under Strickland. Id. at 3.

Under the provisions of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, a defendant must be brought to trial within 70 days from the filing of the indictment or from the date of his initial appearance, whichever is later. 18 U.S.C. § 3161(c)(1). Section 3161(h) sets forth periods of time that should be excluded "in computing the time within which the trial of any such offense must commence." Of particular relevance in this case is § 3161(h)(1)(D), which excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion."

Petitioner's trial counsel waived his speedy trial rights at an August 15, 2014, telephonic scheduling conference. At the time of the telephonic scheduling conference, petitioner's trial was set to commence on September 22, 2014. It was reasonable for petitioner's trial counsel to have waived speedy trial concerns at that time because the government had a pending motion. See (DE 36). Also, prior to being moved, the trial date was set for only about five weeks after petitioner's arraignment. The trial date was continued again on September 3, 2014, and at that time, there were several pending pretrial motions. See (DE 36, 41, 45, 47).

This claim fails under both prongs of the Strickland standard. It fails under the performance prong because the record belies petitioner's claim that his trial counsel's waivers constituted deficient performance. Petitioner's claim fails under the prejudice prong because he has failed to allege any prejudice. Rather, petitioner merely makes the bare assertion that jail time has Sixth Amendment significance and is prejudicial. See Mot. Vacate Mem. (DE 151-1) at 3. Accordingly, petitioner's first claim must be dismissed.

ii. Stipulated to prior convictions

Petitioner alleges in his second claim that his trial counsel provided ineffective assistance by stipulating to prior convictions for being a felon in possession of a firearm. Mot. Vacate Mem. (DE 151-1) at 5-7. Petitioner concludes that he was prejudiced because his trial counsel's actions led to a guilty verdict. Id. at 6.

This claim fails under both prongs of the Strickland standard. It fails under the performance prong because trial counsel's strategic decision to stipulate to the prior convictions was not unreasonable. See Strickland, 466 U.S. at 691 (noting that assessment of performance requires a court to apply a "heavy measure of deference to counsel's judgments"). By stipulating to the existence of the prior convictions, trial counsel avoided further presentation or discussion of the convictions before the jury.

Petitioner's claim fails under the prejudice prong because petitioner has failed to demonstrate a reasonable probability that his trial counsel's failure to enter into this stipulation would have led to a different outcome at trial, particularly given the strong evidence in this case. The evidence was described by the Fourth Circuit as follows:

Taken in the light most favorable to the prosecution, we find ample record support for the jury's finding that Stewart constructively possessed the firearm and ammunition found in the vehicle on the night in question. Specifically, both of the police officers involved in the traffic stop underlying this prosecution testified to seeing a gun, which was loaded protruding from the vehicle's center console. Stewart was driving the vehicle, which he had borrowed from his aunt. At a minimum, then, Stewart had dominion and control over the vehicle in which the loaded firearm was located, which is enough to support a conviction under a constructive possession theory.

But the Government's evidence went further. The police officer who first observed the firearm offered clear and unequivocal testimony describing the close proximity between Stewart and the gun- explaining that the firearm was within inches of Stewart's body-and that Stewart glanced toward the gun and began to move his hand toward it after the officer directed Stewart to raise his hands. This evidence also establishes Stewart's constructive possession of the firearm, as it was readily within his reach and at his disposal.

See Stewart, 628 F. App'x at 180-81 (internal citations omitted).

In sum, this claim fails under both prongs of the Strickland standard. Therefore, petitioner's second claim must be dismissed.

iii. Failed to file a motion

In his third claim, petitioner alleges that his trial counsel erred by failing to file a motion to quash the indictment, in light of the chain of custody violations committed by Officer Boyette. Mot. Vacate Mem. (DE 151-1) at 7-10. In particular, petitioner contends that Officer Boyette committed the following violations while securing the firearm: 1) he failed to take photos of the firearm in the vehicle before removing it; 2) he did not request that the video recording relating to the firearm in question be preserved prior to trial; 3) he failed to send the firearm to the lab until eight months later; and 4) he stated that he was conducting procedures that were the responsibility of the evidence room officer. Id. at 7-8. Petitioner contends that his trial counsel knew or should have known of the importance of properly handling evidence and its impact on his case. Id. at 8. Petitioner contends that if his trial counsel had filed a motion to quash, the indictment would have been dismissed based on the chain of custody violations. Id. at 10.

This claim fails under both prongs of the Strickland standard. This claim fails under the performance prong because petitioner has failed to show that Officer Boyette's alleged transgressions warranted the filing of a motion to quash. This claim fails under the prejudice prong because a review of the record reveals that trial counsel used the alleged transgressions to raise doubts in the minds of jurors about the competency of the law enforcement officers involved in the case. See Oct. 15, 2014 Tr. (DE 120) at 49:20-51:8; 55:13-59:15. Consequently, petitioner's third claim must be dismissed.

iv. Failed to adequately consult

Petitioner alleges in his fourth claim that his trial counsel violated his Sixth Amendment rights when she failed to adequately consult with him prior to trial. Mot. Vacate Mem. (DE 151-1) at 10-11. In particular, petitioner contends that his trial counsel only paid him one visit prior to trial, and it occurred in September 2014. Id. at 10. Petitioner concludes that he was left ignorant to vital aspects of his case, and if handled properly, the outcome would have been different. Id. at 11.

This claim fails under both prongs of the Strickland standard. It fails under the performance prong because petitioner has failed to allege how trial counsel's failure to adequately consult with him constituted deficient performance. See Strickland, 466 U.S. at 689 (explaining that because "[i]t is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence," and because "scrutiny of counsel's performance must be highly deferential."). This claim fails under the prejudice prong because petitioner has failed to sufficiently allege prejudice. See United States v. Terry, 366 F.3d 312, 316 (4th Cir. 2004) ("[C]onclusory allegations are insufficient to establish the requisite prejudice under Strickland."). Accordingly, petitioner's fourth claim must be dismissed.

v. Not adequately qualified

In his fifth claim, petitioner alleges that his trial counsel was not qualified to represent him. Mot. Vacate Mem. (DE 151-1) at 12. Specifically, petitioner asserts that his trial was his trial counsel's first jury trial. Id. Petitioner concludes that if his trial counsel had been adequately qualified, he would have been acquitted. Id.

Case law does not support a conclusion that a lawyer with limited experience is ipso facto ineffective for Sixth Amendment purposes. Rather, the Supreme Court has noted, "[e]very experienced criminal defense attorney once tried his first criminal case . . . . The character of a particular lawyer's experience may shed light on an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such an evaluation. United States v. Cronic, 466 U.S. 648, 665 (1984).

This claim fails under both prongs of the Strickland standard. Petitioner was represented by Assistant Federal Public Defenders Joseph Bart Gilbert and Diana Helene Pereira. Petitioner's bare conclusion that counsel Pereira provided constitutionally deficient performance because she was conducting her first jury trial must fail under the performance prong of Strickland. In addition, petitioner has failed to demonstrate any prejudice from the alleged inexperience of trial counsel. Consequently, petitioner's fifth claim must be dismissed.

vi. Failed to adequately cross-examine

Petitioner alleges in his sixth claim that his trial counsel failed to adequately cross-examine several of the government's key witnesses. Mot. Vacate Mem. (DE 151-1) at 12-14. In particular, petitioner contends that his trial counsel failed to adequately cross-examine the following witnesses: Officer James Lanier, Daniel Boyette, and Special Agent Joshua Johnson. Id at 13. Petitioner summarily concludes that if his trial counsel had adequately cross-examined these witnesses, the outcome of the trial would have been different. Id. at 14.

This claim fails under both prongs of the Strickland standard. This claim fails under the performance prong because trial "counsel's decisions regarding how best to cross-examine witnesses presumptively arise from sound trial strategy." Richie v. Mullin, 417 F.3d 1117, 1124 (10th Cir. 2005). This claim fails under the prejudice prong because petitioner has failed to sufficiently allege prejudice. See Terry, 366 F.3d at 316 ("[C]onclusory allegations are insufficient to establish the requisite prejudice under Strickland."). Consequently, petitioner's sixth claim must be dismissed.

vii. Failed to object to jury instructions

In his seventh claim, petitioner alleges that his trial counsel erred by failing to object to the court's jury instructions on the issue of constructive possession. Mot. Vacate Mem. (DE 151-1) at 14-15. In particular, petitioner asserts that his trial counsel should have objected to the court's instruction mentioning "knowingly" but failing to mention "willingly" and "intentionally." Id. at 14. Petitioner also contends that the constant changes to the jury instructions confused the jury and prejudiced him. Id. Petitioner concludes that if his trial counsel had objected, this court would have been forced to make the requested corrections and "limit the changes to the instructions." Id. at 15.

This claim fails under both prongs of the Strickland standard. At petitioner's trial, this court gave the following instruction: "Possession is called constructive when a person doesn't have direct physical control over something but can knowingly control it and intends to control it, either directly or through another person or persons." See Oct. 15, 2014 Tr. (DE 120) at 209:18-21. This instruction was a correct statement of the applicable law. See United States v. Laughman, 618 F.2d 1067, 1076-77 (4th Cir. 1980) (defining constructive possession). Thus, petitioner has failed to show that his attorney provided deficient performance by failing to object or that he somehow suffered prejudice. See Strickland, 466 U.S. at 689 (noting that a fair assessment of counsel's conduct requires an evaluation from counsel's perspective at the time); see also United States v. Kilmer, 167 F.3d 889, 893 (5th Cir. 1999) (holding that "[a]n attorney's failure to raise a meritless argument . . . cannot form the basis of a successful ineffective assistance of counsel claim"); Moore v. United States, 934 F.Supp. 724, 731 (E.D. Va. 1996) (holding that "[f]ailure to raise a meritless argument can never amount to ineffective assistance"). Accordingly, petitioner's seventh claim must be dismissed.

viii. Failed to object to testimony

Petitioner alleges in his eighth claim that his trial counsel failed to object to Officer Lanier's testimony regarding latent print evidence. Mot. Vacate Mem. (DE 151-1) at 15. Petitioner contends that his trial counsel should have objected after Officer Lanier's testified he is not an expert. Id. Petitioner concludes that based on his trial counsel's failure to object, the jury was led to believe several assumptions and deprived of the facts surrounding the science and development of latent prints. Id. Petitioner concludes that he was prejudiced because the ultimate outcome was that he received an unfair trial. Id.

A review of Officer Lanier's trial testimony, given on October 15, 2014, reveals that he did not offer evidence that was harmful to petitioner. See Oct. 15, 2014 (DE 120) at 143:1-155:15. Officer Lanier testified that he analyzed the firearm in the case for latent prints. See id. at 149:20-22. Officer Lanier explained, however, that he did not find any usable prints on the firearm. See id. at 150:24-25. Officer Lanier also testified that he did not test the bullets. See id. at 155:8-9.

In sum, Officer Lanier was not offered as an expert, and he did not offer expert testimony. Moreover, Officer Lanier's testimony was not harmful to petitioner's case. See id. at 142:14-155:16. Rather, Officer Lanier appears to have been offered by the government to show the steps law enforcement took to investigate the case and why there were no fingerprints. Therefore, there is no basis upon which petitioner's trial counsel should have made an objection to Officer Lanier's testimony. Consequently, petitioner's eighth claim must be dismissed.

ix. Failed to address counsel's performance

In his eleventh claim, petitioner alleges that his appellate counsel provided ineffective assistance when he failed to raise trial counsel's deficient performance on direct appeal. Mot. Vacate Mem. (DE 151-1) at 18-19. In particular, petitioner contends that his appellate attorney should have raised claims one through eight. Id.

This claim fails under both prongs of the Strickland standard. It fails under the performance prong because an ineffective assistance of counsel claim can be raised on direct appeal only when it conclusively appears from the record that counsel provided ineffective assistance. United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014). When there is not such a showing, an ineffective assistance of counsel claim shall be raised in a motion filed pursuant to 28 U.S.C. § 2255 to allow for development of the record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). In this case, the record does not conclusively show that petitioner's trial counsel provided ineffective assistance. Therefore, appellate counsel did not provide deficient performance by failing to raise claims one through eight on direct appeal. This claim fails under the prejudice prong because petitioner has failed to allege any prejudice. Consequently, petitioner's eleventh claim must be dismissed.

b. Petitioner fails to state a claim of prosecutorial misconduct.

Petitioner alleges in his ninth claim that the prosecutor committed prosecutorial misconduct when he informed the jury that the reason petitioner ran was because he knew that he had a firearm in the car. Mot. Vacate Mem. (DE 151-1) at 15-17. Petitioner asserts that the prosecutor's statement implied that petitioner was aware of the firearm's existence and was indeed guilty of possessing the firearm. Id. at 16-17.

In order for a prosecutor's conduct to qualify as prosecutorial misconduct, the conduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (quoting United States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995)). Reversible prosecutorial misconduct has two components: 1) defendant must show that the prosecutor's remarks or conduct were improper; and 2) defendant must show that such remarks or conduct prejudicially affected his substantial rights such that he was deprived of a fair trial. Id. (citing United States v. Mitchell, 1 F.3d 235, 240 (4th Cir.1993)). When assessing prejudice, the court must consider the following factors:

(1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters; (5) whether the prosecutor's remarks were invited by improper conduct of defense counsel; and (6) whether curative instructions were given to the jury.

United States v. Wilson, 624 F.3d 640, 656-57 (4th Cir. 2010) (citing Scheetz, 293 F.3d at 186).

During its closing argument, the government can make reasonable inferences from evidence adduced during the trial. See United States v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994) (citing United States v. Brainard, 690 F.2d 1117, 1122 (4th Cir. 1982)). The prosecutor is guided by the fundamental rule that closing argument is limited to those facts which are in evidence. United States v. Lighty, 616 F.3d 321, 361 (4th Cir. 2010).

Here, the government's argument was supported by the legal principle that "in appropriate circumstances, a consciousness of guilt may be deduced from evidence of flight." See United States v. Obi, 239 F.3d 662, 665 (4th Cir. 2001). Moreover, a review of the record reveals that the parties did not dispute that petitioner ran after he was ordered out of his car. In fact, defense counsel argued that "[w]e don't know why he ran. We know it was late at night. All we know is that he ran." See Oct. 15, 2014 Tr. (DE 120) at 185: 5-6. The parties disagreed over the reason for petitioner's flight, but that does not amount to prosecutorial misconduct. Accordingly, petitioner's ninth claim must be dismissed.

c. Petitioner's Johnson claim fails on the merits.

In his tenth claim, petitioner argues that, in light of the Supreme Court's decision in Johnson, his sentence was improperly enhanced under U.S.S.G. § 2K2.1. Mot. Vacate Mem. (DE 151-1) at 17-18. In particular, petitioner contends that his convictions for possessing a weapon of mass destruction and assault no longer support the "enhancement" found in U.S.S.G. § 2K2.1. Id. at 17

In Johnson, the Supreme Court addressed whether increasing a defendant's sentence based on the residual clause contained in 18 U.S.C. § 924(e)(2)(B)(ii) violates due process. 135 S. Ct. at 2551. The residual clause provided that an offense was a "violent felony" for purposes of § 924(e), if it "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The Court in Johnson held that "[i]ncreasing a defendant's sentence under the [residual] clause denies due process of law." 135 S. Ct. at 2557. The Supreme Court later decided Welch v. United States, 136 S. Ct. 1257, 1268 (2016), which held that Johnson applies retroactively to cases on collateral review.

Petitioner relies on Johnson's reasoning to challenge application of a clause found in U.S.S.G. § 4B1.2(a) at the time of his sentencing.¹ See U.S.S.G. § 2K2.1, cmt. n.1 (stating § 4B1.2(a) provides the definition for "crime of violence" in § 2K2.1). The Supreme Court recently held, however, that "the Guidelines are not amenable to a vagueness challenge." Beckles v. United States, 137 S. Ct. 886, 894 (2017). Petitioner may not rely on Johnson's reasoning to attack his guidelines calculation. Consequently, petitioner's tenth claim must be dismissed.

1 The definition of "crime of violence," revised August 1, 2016, no longer contains a residual clause.

In the government's motion, it requests that petitioner's Johnson claim be stayed pending the Supreme Court's decision in Beckles v. United States, No. 15-8544. Gov's Mot. (DE 163) at 11-12. The Supreme Court decided Beckles on March 6, 2017. Therefore, to the extent that the government is seeking a stay pending the Supreme Court's ruling in Beckles, its motion is denied as moot.

2. Motion to Amend

Petitioner's second and final motion before this court is a motion to amend, which raises a claim under Mathis. Mot. Amend (DE 169) at 1. In Mathis, the Supreme Court held that when determining whether an offense qualifies as a predicate under the Armed Career Criminal Act ("ACCA"), the court takes a modified categorical approach, which means looking to the statutory elements of the offense rather than the means of commission. 136 S. Ct. at 2257. As discussed below, because petitioner's Mathis claim is untimely, amendment would be futile.

A one-year period of limitation applies to claims in a § 2255 motion. See 28 U.S.C. § 2255(f). 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.

Id. In this case, judgment was entered on January 7, 2015, and petitioner appealed this court's judgment. On October 13, 2015, the Fourth Circuit Court of Appeals affirmed. See Stewart, 628 F. App'x at 179. Petitioner then filed a petition for certiorari with the Supreme Court, which was denied on February 29, 2016. See Stewart, 136 S. Ct. at 1227. Therefore, petitioner's judgment became final on February 29, 2016. See Clay v. United States, 537 U.S. 522, 527 (2003) (noting that finality attaches when the Supreme Court affirms a conviction on the merits on direct review, denies a petition for writ of certiorari, or when the time for filing a certiorari petition expires).

Because petitioner's judgment became final on February 29, 2016, he had until February 29, 2017 to file a timely § 2255 motion. Petitioner's motion to amend was filed on June 11, 2017, at the earliest.² Thus, petitioner's motion was filed over three months outside the filing period provided by § 2255(f)(1).

2 A pleading submitted by a prisoner acting pro se is deemed filed on the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988). In this case, petitioner's motion to amend is dated June 11, 2017. See Mot. Amend (DE 169) at 1. --------

Petitioner also fails to show that his claim is timely pursuant to § 2255(f)(3) for at least two reasons. First, Mathis did not set forth a new rule of constitutional law. See Mathis, 136 S. Ct. at 2257 (indicating its decision was based on longstanding precedent); see also United States v. Saunders, Nos. 7:09CR00021-01, 7:16CV81214, 2017 WL 1612542, at *3 (W.D. Va. Apr. 28, 2017) (concluding that Mathis did not announce a new rule of law). Second, the Supreme Court has not made Mathis retroactively applicable to cases on collateral review. See Mathis, 136 S. Ct. at 2243; see also In re Lott, 838 F.3d 522, 523 (5th Cir. 2016) (per curiam) (denying authorization to file a successive application under 28 U.S.C. § 2255(h)(2) on the basis that the movant failed to make a prima facie showing that Mathis set forth a new rule of constitutional law that has been made retroactive to cases on collateral review).

Petitioner has not established that he is entitled to equitable tolling. In order to prevail on an equitable tolling theory, a petitioner must demonstrate that: 1) he has been pursuing his rights diligently, and 2) some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. 631, 649 (2010); United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (framing the inquiry as a three-part test where an otherwise time-barred petitioner must show: (a) extraordinary circumstances, (b) beyond his control or external to his own conduct, (c) that prevented him from making a timely filing).

Petitioner presents no extraordinary circumstances that prevented him from filing a timely § 2255 claim. See, e.g., Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (holding that attorney miscalculation of deadline is not sufficient to warrant equitable tolling); Sosa, 364 F.3d at 512 (holding that ignorance of the law is not a basis for equitable tolling in the case of an unrepresented prisoner); Rouse v. Lee, 339 F.3d 238, 248-50 (4th Cir. 2003) (holding that attorney miscalculation of deadline is not sufficient to warrant equitable tolling); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (holding that unfamiliarity with the law due to illiteracy or pro se status does not toll the limitations period). Thus, petitioner has demonstrated neither that he pursued his rights diligently, nor that some extraordinary circumstance prevented the timely filing of his Mathis claim.

In sum, petitioner's Mathis claim is untimely. Therefore, petitioner's motion to amend must be denied on the basis that amendment would be futile.

C. Certificate of Appealability

A certificate of appealability may issue only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate that reasonable jurists could debate whether the issues presented should have been decided differently or that they are adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 482-84 (2000). After reviewing the claims presented on collateral review in light of the applicable standard, the court finds that a certificate of appealability is not warranted.

CONCLUSION

Based on the foregoing, this court DENIES petitioner's motion to vacate (DE 151), DENIES petitioner's motion to amend (DE 169), and GRANTS, in part, and DENIES as moot, in part, the government's motion (DE 162). This court also DENIES a certificate of appealability. The clerk is DIRECTED to close this case.

SO ORDERED, this the 17th day of July, 2017.

/s/_________

LOUISE W. FLANAGAN

United States District Judge