United States District Court, D. South Carolina, Orangeburg Division
OPINION AND ORDER
Honorable Margaret B. Seymour Senior United States District
Henry Lee Jackson Jr. (“Movant”), an inmate in
the custody of the Federal Bureau of Prisons, seeks to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. ECF No. 84.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
April 9, 2003 Movant was indicted for felon in possession of
a firearm, a violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2) (Count One). ECF No. 1. Movant pleaded guilty
to Count One pursuant to a written plea agreement on June 30,
2003. ECF No. 19. Prior to sentencing, the United States
Probation Office prepared a Presentence Investigation Report
(“PSR”). The Probation Officer designated Movant
as an Armed Career Criminal under the Armed Career Criminal
Act (“ACCA”) 18 U.S.C. § 924(e), which
increased Movant's Base Offense Level from 24 to a Total
Offense Level of 30, with a Criminal History Category of V.
Movant's career criminal designation was based on five
convictions for Assault and Battery of a High and Aggravated
Nature (“ABHAN”). Pursuant to the United States
Sentencing Guidelines (“Guidelines”),
Movant's guideline range was calculated at 180 to 188
months imprisonment, with not more than five years supervised
release. At sentencing, the government moved for a downward
departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C.
§ 3553(e). ECF No. 28. The court granted an oral motion
to depart downward from the Guidelines and on November 12,
2003, the court sentenced Movant to 120 months imprisonment,
with a supervised release term of 5 years. ECF No. 30 at
filed the within § 2255 motion on August 23, 2017.
Movant, appearing through counsel, asserts that, in light of
the Supreme Court's decision in Johnson v. United
States, 576 U.S. ___, ___ 135 S.Ct. 2551, 2557 (2015),
and Welch v. United States, 578 U.S.___, ___ 136
S.Ct. 1257, 1265 (2016), Movant does not have the requisite
number of qualifying predicate offenses to be found an armed
career criminal. ECF. No. 82. On September 14, 2017,
Respondent filed a motion to dismiss, or, alternatively, for
summary judgment on the grounds that the § 2255 motion
is untimely. ECF No. 84. Movant filed a response to the
Respondent's motion on September 21, 2017. ECF No. 86.
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. §§ 2241 et
seq., a one-year statute of limitations applies to
motions brought under 28 U.S.C. § 2255. 28 U.S.C. §
2255(f). The one-year statute of limitations runs from the
(1) the date on which the judgment of conviction becomes
(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 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. Thus, under § 2255(f)(3), Movant's
motion will be timely if “(1) he relies on a right
recognized by the Supreme Court after his judgment became
final, (2) he files a motion within one year from ‘the
date on which the right asserted was initially recognized by
the Supreme Court, ” 28 U.S.C. § 2255(f)(3), and
(3) the Supreme Court or this court has made the right
retroactively applicable.' United States v.
Brown, 868 F.3d 297, 301 (4th Cir. 2017). Movant asserts
that he is entitled to relief based on the Supreme
Court's decision in Welch which held that
Johnson is retroactive. ECF No. 82. Additionally,
Movant argues that without the enhancement under §
924(e), the maximum term of supervised release could have
only been three years. ECF No. 82 at 1. See 18
U.S.C. 3583(b)(2). Movant further contends that without the
enhancement, the maximum penalty for any violation of
supervised release would be two years. ECF No. 82 at 2.
See 18 U.S.C. 3553(e)(3). Respondent does not
dispute that Movant would no longer qualify as an armed
career criminal. See ECF No. 84 at 3 n.2. Respondent
does, however, contend that Movant's motion is time
barred, and therefore should be dismissed. Id. at 3.
was decided on April 18, 2016. Thus, the one year statute of
limitations defined in § 2255(f)(3) ran on April 18,
2017. Movant filed his Motion on August 23, 2017, more than
four months after the statute of limitations expired. ECF No.
82. Movant does not dispute that he filed his § 2255
motion outside of the statute of limitations; however, Movant
claims he is entitled to equitable tolling.
movant may be entitled to equitable tolling 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.” Holland v.
Florida, 560 U.S. 631, 649 (2010) (citing Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). Equitable
tolling is available 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.” Harris v. Hutchinson, 209 F.3d 325,
330 (4th Cir. 2000). “[A]ny invocation of equity to
relieve the strict application of statute of limitations must
be guarded and infrequent, lest circumstances of
individualized hardship supplant the rules of clearly drafted
statutes.” Id. Generally,
“‘[t]ransfers between prison facilities, solitary
confinement, lockdowns, restricted access to the law library
and an inability to secure court documents do not qualify as
extraordinary circumstances.”' Grant v.
Bush, No. 6:14-CV-01313-DCN, 2015 WL 4747104, at *8
(D.S.C. Aug. 11, 2015) (quoting Allen v. Johnson,602 F.Supp.2d 724, 727-28 (E.D. Va.2009)). However, where a