United States District Court, D. Maryland
J. Garbis United States District Judge
December 20, 2017, Petitioner Jermar Stewart (a/k/a Jamal
Stewart) filed a Motion to Vacate ("Motion") under
28 U.S.C. § 2255, claiming that he is entitled to habeas
relief pursuant to Mathis v. United States. 136
S.Ct. 2243 (2016) and United States v. Simmons. 649
F.3d 237 (4th Cir. 2011). ECF No. 443. The Government
responded, indicating that the Motion is time-barred. ECF No.
444. The Court advised Petitioner that the Motion would be
dismissed as untimely unless Petitioner provided information
establishing he is entitled to the benefit of the exceptions
provided in 28 U.S.C. § 2255 or is otherwise entitled to
an equitable tolling of the statute of limitations. ECF No.
446. Petitioner has not replied. For reasons set forth
herein, the Motion is denied and dismissed.
15, 2009, Petitioner pleaded guilty to Conspiracy to
Distribute and Possess with Intent to Distribute Controlled
Substances, in violation of 21 U.S.C. § 846. ECF No.
151. On August 10, 2009, Petitioner was sentenced to a term
of 262 months in prison pursuant to a Rule 11(c)(1)(C) plea
agreement. ECF Nos. 198, 199. Petitioner filed an appeal,
which the Fourth Circuit affirmed in part and dismissed in
part by judgment entered on March 17, 2011. United
States v. Stewart. 417 Fed.Appx. 306 (4th Cir.
2011); ECF Nos. 201, 285. Specifically, the Fourth Circuit
affirmed Petitioner's conviction and dismissed the appeal
of his sentence. Id. at 307.
to 28 U.S.C. § 2255(f), a one-year limitation period
applies to petitions filed under § 2255, which runs from
the latest of:
(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.
order for Petitioner's Motion to be timely under §
2255(f)(1), it must have been filed within one year of final
judgment. When a defendant files a direct appeal, the
judgment of conviction becomes final when the Supreme Court
denies a petition for a writ of certiorari or when the time
for filing a certiorari petition expires. Clay v. United
States. 537 U.S. 522, 527 (2003); United States v.
Under. 552 F.3d 391, 396 (4th Cir. 2009).
Petitioner filed a direct appeal to the Fourth Circuit and
his judgment of conviction became final on June 17, 2011,
when the ninety-day time period for filing a certiorari
petition to the Supreme Court expired. As a result, the
§ 2255(f)(1) limitations period expired one year later,
on June 17, 2012. Petitioner, however, did not file the
instant Motion until more than five years later, on December
20, 2017. Therefore, Petitioner's Motion is untimely
under § 2255(f)(1).
the Motion is not timely under any other provisions of §
2255(f). Petitioner's claim does not involve alleged
unconstitutional governmental action, as required by §
2255(f)(2), nor does it allege new facts that could not have
been previously discovered through the exercise of due
diligence, to satisfy § 2255(f)(4). And, because
Petitioner does not rely on a right that was "newly
recognized" by the Supreme Court, he likewise cannot
rely on § 2255(f)(3) to justify the late filing of his
extraordinary remedy of equitable tolling could permit review
of Petitioner's untimely Motion; however, Petitioner
fails to set forth any argument supporting equitable tolling.
To be entitled to equitable tolling, Petitioner must
establish that either some wrongful conduct by Respondent
contributed to his delay in filing his Motion to Vacate, or
that circumstances beyond his control caused the delay.
See Harris v. Hutchinson, 209 F.3d 325, 330 (4th
Cir. 2000). "[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." Id. Petitioner has
failed to establish factors warranting equitable tolling of
the statute of limitations. He has not asserted ...