United States District Court, D. Maryland
ANTONIO M. McCLURKIN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
November 3, 2011, Petitioner Antonio M. McClurkin pleaded
guilty to bank robbery in violation of 18 U.S.C. §
2113(a). ECF No. 17. His conviction became final on November
8, 2011, when he was sentenced to a 180-month term of
imprisonment as a career offender under the United States
Sentencing Guidelines § 4B1.1. ECF No. 23. No. appeal
14, 2016, McClurkin filed a motion to vacate pursuant to 28
U.S.C. § 2255, which was withdrawn on June 9, 2017. ECF
Nos. 38, 46. McClurkin requested permission to file a
successive § 2255 motion on March 9, 2018, citing a new
rule implemented by the United States Supreme Court in
Rosales-Mireles v. United States, 138 S.Ct. 1897
(2018). ECF No. 47. The court construed
McClurkin's filing as a motion to vacate and directed him
to supplement the filing within 45 days. ECF No. 48.
McClurkin filed supplemental motions to vacate on April 26,
2018 and June 26, 2018. ECF Nos. 49, 51. First, he argues
that pursuant Rosales-Mireles, he should be
resentenced with instructions to consider the
“overwhelming cumulative effects of the overlapping
enhancements in this case.” ECF No. 49. Second,
McClurkin claims that he received a six-level enhancement for
a firearm with which he was never charged. Id.
Third, McClurkin alleges that his counsel was ineffective and
the “Rule 11 inquiry was flawed” because he was
not advised that he could receive enhanced penalties in
subsequent convictions.Id. Fourth, he asserts that his
counsel was ineffective for not raising arguments,
“over the wording of the applicable U.S. sentencing
guidelines.” ECF No. 51.
court issued a show cause order directing the Government to
respond to the motion to vacate. ECF No. 50. The Government
filed a response on August 7, 2018, arguing that the motion
to vacate was time-barred and otherwise procedurally
defaulted or failed on the merits. ECF No. 55. McClurkin
filed a reply to the Government's response on August 27,
2018. ECF No. 57.
Pursuant 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.
the criminal judgment was entered on November 8, 2011. As
noted, McClurkin 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,
McClurkin had until November 8, 2012, 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 circumstances, 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.
argues that he is entitled to equitable tolling because upon
being sentenced in 2011, he was taken back to Fairfax County,
Virginia to serve a sentence imposed by the Commonwealth of
Virginia, and he “did not have access to his federal
legal documents due to the fed-state transit.” ECF No.
57, pp. 1-2. McClurkin's argument is unavailing. At a
minimum, he fails to explain how his incarceration in
Virginia prohibited him from filing anything in federal
McClurkin cannot utilize § 2255(f)(3) to justify the
late filing of his motion. Rosales-Mireles, which
was decided two months after McClurkin's motion was
filed, did not establish a new rule that applies
retroactively to collateral actions under § 2255. 138