United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge.
proceeding pro se, has filed a motion for
reconsideration of this court's dismissal of his motion
for relief pursuant to 28 U.S.C. § 2255. ECF No. 340.
filed a motion to vacate his sentence under 28 U.S.C. §
2255 on March 23, 2016. ECF No. 272. This court dismissed
that motion as untimely, as it was over a year past when his
conviction was final. ECF No. 324. However, on April 6, 2016,
this court recognized the Fourth Circuit held the AEDPA
statute of limitations to be an affirmative defense
(United States v. McRae, 793 F.3d 392, 400-01 (4th
Cir. 2015)), vacated its previous Order, and required the
Government to respond to Defendant's § 2255 motion.
On May 13, 2016, the Government responded to Defendant's
§ 2255 motion, moving to dismiss and arguing that
Defendant's § 2255 motion was untimely. ECF No. 333.
Defendant replied on June 13, 2016, arguing the substance of
his motion but providing no information regarding the
timeliness of his motion, including the presence of facts
regarding equitable tolling. ECF No. 336. This court granted
the Government's motion to dismiss and dismissed
Defendant's § 2255 motion, noting that
Defendant's filing was outside the statute of limitations
and he provided no basis to apply equitable tolling. ECF No.
current motion is a motion to reconsider, which is governed
by Federal Rule of Civil Procedure 59(e). The Fourth Circuit
Court of Appeals has interpreted Rule 59(e) of the Federal
Rules of Civil Procedure to allow the court to alter or amend
an earlier judgment: “‘(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear
error of law or prevent manifest injustice.'”
Becker v. Westinghouse Savannah River Co., 305 F.3d
284, 290 (4th Cir. 2002) (quoting Pac. Ins. Co. v. Am.
Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998)). “Whatever may be the purpose of Rule 59(e) it
should not be supposed that it is intended to give an unhappy
litigant one additional chance to sway the judge.”
Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625
motion for reconsideration, Defendant discusses the issue of
timeliness, arguing that he should not be foreclosed by the
statute of limitations because a key piece of information
relevant to his § 2255 motion did not “come into
[his] possession until March 2016. By not having those copies
I did not believe my filing would be factually
complete.” ECF No. 340 at 2. However, while the Supreme
Court has determined that the time limit for filing of habeas
corpus petitions “is subject to equitable tolling in
appropriate cases” (Holland v. Florida, 560
U.S. 631 (2010)), a district court may apply equitable
tolling only in “those rare instances where-due to
circumstances external to the party's own conduct-it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result.”
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).
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. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). Whether a
circumstances warrants equitable tolling is made on a
case-by-case basis. Holland, 560 U.S. at 650
(quoting Baggett v. Bullitt, 377 U.S. 360, 375
(1964)). In this case, Defendant states that he did not have
all information needed to make his motion complete. However,
he offers no explanation of why he did not or could not get
this information within the period of the statute of
limitations. None of the information he has now provided is
dated any later than 2010, and most is in the 2004-2005 time
period. It is Defendant's burden to show that “some
extraordinary circumstance stood in his way” in order
to be entitled to the benefit of equitable tolling;
therefore, he must show some reason why he could not get the
necessary information prior to the running of the statute of
limitations. As Defendant offers no information about why he
could not have obtain the information earlier, he is not
entitled to equitable tolling.
has not shown any reason why he could not obtain the
necessary information within the statute of limitations for a
§ 2255 motion. Therefore, equitable tolling does not
apply. Accordingly, Defendant's motion for
reconsideration is denied.
IS SO ORDERED.
 “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
(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
(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 ...