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Niles v. United States

United States District Court, D. South Carolina, Florence Division

November 20, 2019

ARTHUR LARON NILES, Petitioner,
v.
UNITED STATES OF AMERICA. Respondent.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         On 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.

         II. STANDARD

         Federal 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 the sentence.

         The petitioner must prove the grounds for collateral attack by a preponderance of the evidence.[1] 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)).

         III. DISCUSSION

         The 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.”[2] 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.

         Next, 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, 2016.

         Niles 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.

         However, 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 Davi ...


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