United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
February 3, 2015, Saleh Fakhoury was sentenced on one count
of conspiracy to use fire to commit a federal felony, in
violation of 18 U.S.C. § 844(m). Criminal judgment was
entered on February 4, 2015. See United States v.
Fakhoury, Criminal No. RDB-14-0178 (D. Md.) at ECF No.
40. No appeal was filed.
25, 2016, Fakhoury filed a self-represented Motion to Vacate
pursuant to 28 U.S.C. § 2255, dated May 20, 2016,
raising claims of ineffective assistance of counsel which
resulted in the cancellation of the plea agreement, thus
depriving him of a lesser sentence under § 5K1.1.
Id. at ECF No. 56.
26, 2016. the Court issued a show cause order granting the
parties an opportunity to brief the issue of timeliness.
Id. at ECF No. 57. On July 25, 2016,, Respondent
filed a response, arguing that the Motion to Vacate was
time-barred. Id. at ECF No. 58. On August 18, 2016,
Fakhoury filed a Motion to Amend as of Course pursuant to
Rule 15(a), presenting "new evidence" which he
claims was unavailable when he filed his original § 2255
Motion. Id. at ECF No. 59.
was convicted and sentenced on February 3, 2015. As noted, he
did not file an appeal. The one-year statute of limitations
set out under 28 U.S.C.§ 2255(f)(1) began to run on that
date. See United States v. Sanders. 247 F.3d 139,
142 (4th Cir. 2001) (where no appeal taken, statute of
limitations begins to run on date the court entered the
judgment of conviction.. Therefore, Fakhoury had until
February 3, 2016, to file a timely Motion to Vacate. He did
not do so.
one-year limitation period may be forgiven if a petitioner
shows that" 1) extraordinary circumstance, 2) beyond his
control or external to his own conduct, 3)... prevented him
from filing on time." United States v. Sosa,
364 F.3d 507, 512 (4th Cir. 2004) (citing Rouse v.
Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en
banc). A petitioner must show some wrongful conduct by a
respondent contributed to the delay in filing, or that
circumstances beyond his control caused the delay. See
Rouse, 339 F.3d at 246. "[A]ny resort to equity
must be reserved for those rare instances where ... 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. 2006).
Generally, the petitioner must show that he has been
diligently pursuing his rights and some extraordinary
circumstance prevented him from filing a timely petition.
See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
Rouse, 339 F.3d at 246.
does not provide evidence of equitable tolling. Rather, he states
that he has discovered new evidence, unavailable when he
originally filed his Motion on May 20, 2016. He refers to
this new evidence as a "clarifying statement" which
casts his role in the stated crime as that of a "minimal
participant." entitling him to a 4-level reduction
pursuant to the newly amended § 3B1.2 of the U.S.
Sentencing Guidelines Manual. Fakhoury claims that his
eligibility for a minor adjustment to his imposed sentence of
48 months Contradicts the need to challenge the
Respondent's assertion that he is time-barred..."
ECF No. 59. He seemingly contends that his § 2255 is now
timely tiled under § 2255(1)(3) as he is entitled to
statutory tolling of the one-year period. The Court finds
Fakhoury's argument unavailing.
U.S.C.§ 2255(1)(3) provides that the one-year limitation
period shall run from 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. On
November 1, 2015, the United States Sentencing Commission
("Commission”) issued Amendment 794 (the
Amendment), which amended the commentary to U.S.S.G.§
3B1.2. The Commission did so, finding that minor role
reductions were being "applied inconsistently and more
sparingly than the Commission intended." United
States v. Quintero-Leyva, 823F.3d 519, 521 (9th Cir.
2016). The Amendment was made retroactive by the Commission,
not the Supreme Court, and applies retroactively only on
direct appeal. Id., at 523-524. U.S.S.G. §
1B1.10 lists all Guidelines amendment's that the
Sentencing Commission has made retroactively applicable to
defendants on collateral review, rather than direct appeal,
and Amendment 794 is not listed in § 1B 1.10 as
retroactively applicable. See United States v.
Hunley, 2016 WL 4523417, * 1-2 (W. D. Va. 2016).
to the extent that Fakhoury wishes to amend his Motion to
Vacate to include a challenge to his sentence under Amendment
794, his Motion to Amend shall be denied. The amendment of a
§ 2255 motion is governed by Rule 15 of the Federal
Rules of Civil Procedure. See United States v.
Pitman, 209 F.3d 314, 317 (4th Cir. 2000) (noting that
although the Rules Governing Section 2255 do not address the
procedure for amending motions, courts have typically applied
Federal Rule of Civil Procedure 15). A party may amend his
pleading once as a matter of course within twenty-one days
after service or, if it is a pleading requiring a response,
within twenty-one days after service of the response or
service of a motion under Rule 12(b), (e), or (t), whichever
is earlier. Fed.R.Civ.P. 15(a)(I). Otherwise, a party may
amend his pleading only with the written consent of the
opposing party or by leave of court. Fed.R.Civ.P. 15(a)(2).
The Fourth Circuit Court of Appeals has held that "the
standards used by a district court in ruling on a motion to
amend or on a motion to supplement are nearly
identical." Franks v. Ross, 313 F.3d 184, 198
n. 15 (4th Cir. 2002). In either case, leave should be freely
granted and denied only where good cause exists, such as
prejudice to the opposing party. [d. Also, leave
should be denied when the amendment would be futile.
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th
original Motion attacks Fakhoury's conviction on grounds
of ineffective assistance of counsel. It is untimely and
Fakhoury provides no real grounds for equitable tolling. He
may not seek to add a claim arising from a later, separate
occurrence (the November 2015 Amendment to the USSG).
Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme
Court held that "[w]hen the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a Certificate
of Appealability should issue when the prisoner shows, at
least, that... jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling." Slack, 529 U.S. at 484. Fakhoury does
not satisfy this standard, and the Court declines to issue a
Certificate of Appealability. The Motion to Vacate shall be
dismissed. A separate Order follows.
Fakhoury may be arguing that the
one-year limitation period should be tolled as his counsel
withdrew his representation after the conviction and did not
file an appeal. This contention, however, does not set out an
extraordinary circumstance which prevented Fakhoury from
exercising due diligence and timely filing his Motion ...