United States District Court, D. South Carolina, Florence Division
C. NORTON UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner Arthur Laron
Niles's (“Niles”) motion to vacate, set
aside, or correct his federal sentence pursuant to 28 U.S.C.
§ 2255, ECF No. 216; Niles's motion to hold his
petition in abeyance pending rulings by the Supreme Court,
ECF No. 214; Niles's motion for equitable tolling of time
to file his petition, ECF No. 215; and the United States of
America's (“the government”) motion to
dismiss Niles's petition, ECF No. 220. For the reasons
discussed below, the court finds as moot Niles's motion
to hold his petition in abeyance, denies Niles's motion
for equitable tolling, grants the government's motion to
dismiss, and dismisses Niles's petition.
November 13, 2001, Niles pleaded guilty to knowingly using
and carrying a firearm during and in relation to and
possessing in furtherance of a drug trafficking crime and a
crime of violence, and in the course of this violation,
brandishing the firearm and causing the death of Kircktrick
Dewayne Cooper through the use of the firearm, such death
constituting murder, as defined by 18 U.S.C. § 111, all
in violation of 18 U.S.C. §§ 924(c), 924(j)(1) and
2. Niles, acting pro se, filed his 2255 petition on March 28,
2017, in which he raises two grounds for his petition. First,
Niles contends that “his constitutional right to due
process and equal protection is being violated by continued
incarceration, on Count 4, through and by law, i.e., 18
U.S.C. § 924(c) that is void for vagueness and that he
must be discharged from custody.” ECF No. 216 at 4. In
his second ground, Niles contends that “his
constitutional right to due process and equal protection is
being violated by continued incarceration, on count # 4,
through and by law, i.e., 18 U.S.C. § 924(c); 18 USC
924(j); 18 USC § 16; and 18 USC § 1101(a) that are
void for vagueness and that he must be discharged from
custody.” Id. at 5. While Niles does not say
so explicitly, the court interprets this argument to mean
that Niles filed his petition pursuant to Johnson v.
United States, 135 S.Ct. 2551 (2015), which held that
the residual clause of the Armed Career Criminal Act is
unconstitutionally vague. Concurrently with his petition,
Niles filed a motion to hold his petition in abeyance pending
the outcome of several cases and a motion to equitably toll
the statute of limitation for his petition. ECF Nos. 214-15.
The government then filed a motion to dismiss Niles's
petition as well as responses to Niles's other motions.
ECF Nos. 220-22. Niles responded to the government's
motion. ECF No. 223. All four motions are ripe for review.
district courts are charged with liberally construing
petitions filed by pro se litigants to allow the
development of a potentially meritorious case. See Hughes
v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se
petitions are therefore held to a less stringent standard
than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Liberal
construction, however, does not mean that a court may ignore
a clear failure in the pleading to allege facts that set
forth a cognizable claim. See Weller v. Dep't of Soc.
Servs., 901 F.3d 387, 390-91 (4th Cir. 1990).
Pursuant to 28 U.S.C. § 2255(a):
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground 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, may move the court
which imposed the sentence to vacate, set aside or correct
petitioner must prove the grounds for collateral attack by a
preponderance of the evidence. See King v. United
States, 2011 WL 3759730, at *2 (D.S.C. Aug. 24, 2011)
(citing Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958)).
court first addresses Niles's motion to hold his petition
in abeyance. Niles asked the court to hold his petition in
abeyance pending the resolution of Dimaya v. Lynch,
which became Sessions v. Dimaya, 138 S.Ct. 1204
(2018); the Fourth Circuit case United States v. Hassan
Sharif Ali, Docket No. 15-4433, and
“Manthis.” Niles argues that these cases would
resolve the question of whether the residual clause of 18
U.S.C. § 924(c) is void for vagueness, which is the
issue raised in Niles's petition. As discussed below, the
Supreme Court has now spoken on that issue in United
States v. Davis, 139 S.Ct. 2319 (2019). Moreover,
Sessions v. Dimaya has been resolved, and while
United States v. Hassan Sharif Ali is still pending,
the case is in abeyance pending a decision in another Fourth
Circuit case related to the First Step Act of 2018, which is
irrelevant to Niles's petition. As such, the court finds
as moot Niles's motion to hold his petition in abeyance.
the court considers the timeliness of Niles's 2255
petition. The government's motion to dismiss is based, in
part, on the fact that Niles's petition is untimely.
Judgment was entered in Niles's case on July 19, 2002,
and no direct appeal was filed. Niles filed his petition on
March 28, 2017, which far exceeds the one-year period of
limitation imposed by § 2255(f)(1). As discussed above,
Niles's petition relies on Johnson, which was
decided on June 26, 2015. As an alternative to §
2255(f)(1)'s one-year limitation based on the entry of
judgment, § 2255(f)(3) permits the filing of a §
2255 petition within one year of a right that has been newly
recognized by the Supreme Court and made retroactive.
Pursuant to that period of limitation and based on the new
right recognized by Johnson and made retroactive by
Welch v. United States, 136 S.Ct. 1257 (Apr. 18,
2016), Niles's petition would have been due by June 26,
argues that this limitation period should be equitably tolled
because during the one-year period after Johnson was
decided, he lacked access to the resources required to file
his petition. 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 and prevented timely
filing.” Holland v. Fla., 560 U.S. 631, 649
(2010) (internal quotations omitted). Niles explains that he
was in “SMU” from May 12, 2016 to December 12,
2016; then he was in transit from December 12, 2016 to
January 12, 2017; then he had “no property” from
January 12, 2017 to February 6, 2017; and then he was in
lockdown from February 13, 2017 to March 20, 2017. ECF No.
215 at 2. However, this timeline does not address the
relevant one-year period here: June 26, 2015 to June 26,
2016. In fact, the docket reflects letters sent to the court
by Niles during that time period. See, e.g., ECF No.
173 (letter dated June 29, 2015); ECF No. 176 (letter dated
August 9, 2015); ECF No. 190 (letter dated October 19, 2015).
As such, the court finds that Niles has failed to show that
he is entitled to equitable tolling and denies Niles's
motion for equitable tolling.
this does not end the court's inquiry. While Niles's
petition is untimely under Johnson, it may be
considered under Davis. In Davis, the
Supreme Court announced a newly recognized right by finding
§ 924(c)'s residual clause to be unconstitutionally
vague. 139 S.Ct. at 2336. Neither the Supreme Court nor the
Fourth Circuit has determined whether Davis has
retroactive effect. However, the Fifth, Tenth, and Eleventh
Circuits have all determined that Davis established
a new substantive rule that should be applied retroactively.
See United States v. Reece, 2019 WL 4252238, at *4
(5th Cir. Sept. 9, 2019); United States v. Bowen,
2019 WL 4146452, at *4 (10th Cir. Sept. 3, 2019); In re
Hammoud, 931 F.3d 1032, 1039 (11th Cir. 2019). The court
agrees with the reasoning of these courts and gives