United States District Court, D. Maryland
K. Bredar Chief Judge.
response to petitioner Tanya Valencia Mack's motion to
vacate (ECF 364), respondent asserts that the motion is
subject to dismissal because it is time-barred. ECF 366. Mack
filed replies seeking equitable tolling of the limitations
period and also arguing that the statute of limitations did
not apply to her case. ECF 367, 371. The court finds no need
for an evidentiary hearing. See Local Rule 105.6 (D.
Md. 2016). For the reasons stated below, the motion must be
denied and a certificate of appealability shall not issue.
jury trial conducted from February 13, 2011 to February 17,
2011, Mack was convicted of conspiracy to distribute and
possess with intent to distribute 500 grams or more of powder
cocaine and 50 grams or more of crack cocaine, in violation
of 21 U.S.C. § 846. See ECF 242.
28, 2011, Mack was sentenced to serve 240 months in prison,
followed by 10 years supervised release. See ECF
251. Mack timely appealed her conviction to the Fourth
Circuit Court of Appeals. See ECF 255. The Fourth
Circuit affirmed her conviction and sentence on October 18,
2012. ECF 268, see also United States v. Tanya Mack,
495 Fed.Appx. 359 (4th Cir. 2012).
filed a petition, on July 29, 2013, pursuant to 28 U.S.C.
§ 2255 alleging that her sentence of 240 months should
be vacated in light of Alleyne v. United States, 570
U.S. 99 (2013) (holding any fact that increases mandatory
minimum sentence for crime is an element of the crime that
must be submitted to the jury). ECF 280. The government was
directed to respond (ECF 281) and ultimately the court
granted Mack a new sentencing hearing. ECF 321. After the new
sentencing hearing, held on September 24, 2015, the Court
re-imposed its original sentence. ECF 328.
appealed her sentence (ECF 327) and on October 31, 2016, the
Fourth Circuit affirmed the judgment of the District Court.
ECF 353. The Court's mandate issued on November 22, 2016.
ECF 356. Mack timely filed a petition for writ of certiorari
which was denied on March 29, 2017. ECF 362. Mack's
conviction became final for purposes of the filing deadline
for a motion to vacate pursuant to 28 U.S.C. §2255 on
the date the petition for certiorari was denied. See Clay
v. United States, 537 U.S. 522, 527 (2003). Accordingly,
under the limitations period specified in § 2255(f)(1),
Mack's § 2255 motion was due to be filed in this
court on or before March 29, 2018.
pending motion to vacate is deemed filed on May 8, 2017. ECF
364 at 17; see Houston v. Lack, 487 U.S. 266, 270-72
(setting forth the prison mailbox rule). The motion is
therefore untimely unless Mack can establish she is entitled
to equitable tolling of the limitation period, or her motion
otherwise fits within the exceptions found in 28 U.S.C.
§2255(f). The statute provides for a one-year limitation
period 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.
28 U.S.C. §2255(f). As noted, the motion is untimely
under the provision found in § 2255(f)(1),
i.e., it was filed more than one year from the date
on which the judgment of conviction became final. Mack does
not argue, and the court does not find, that any of the other
provisions of §2255(f) apply to Mack's motion.
entitled to equitable tolling, Mack must establish that
either some wrongful conduct by Respondent contributed to her
delay in filing her Motion to Vacate, or that circumstances
beyond her control caused the delay. See Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). A[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. In her replies, Mack
generically asserts that she is entitled to equitable tolling
of the limitations period without providing any specific
facts in support of her contention. As such, Mack has failed
to establish factors warranting equitable tolling of the
statute of limitation.
her arguments that the statute of limitations does not apply
to her case (ECF 371) because there is not statute of
limitations for a habeas petition is conclusory and without
legal support. Her contention that § 2255(f)'s
limitations period violates the Suspension Clause of the
United States Constitution, Art. I, § 9, cl. 2 (ECF 371
at 1), is without merit. In Felker v. Terpin, a case
which ruled that the limitation on successive habeas corpus
petitions introduced by the ''ntiterrorism and
Effective Death Penalty Act of 1996 did not violate the
Suspension Clause, the Supreme Court explained that
“[T]he power to award the writ by any of the courts of
the United States, must be given by written law and we have
likewise recognized that judgments about the proper scope of
the writ are normally for Congress to make.” Felker
v. Terpin, 518 U.S. ...