USA v. Murdock et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
v. 	Case No. 6:16-cr-60015-001
RASHEEN MURDOCK 	DEFENDANT
ORDER
Before the Court is a Report and Recommendation issued by the Honorable Mark E. Ford,
United States Magistrate Judge for the Western District of Arkansas. ECF No. 154. Defendant
Rasheen Murdock has filed an objection. 	ECF No. 155. 	The Court find the matter ripe for
consideration.
I. BACKGROUND
On May 11, 2016, Defendant was indicted on one count of conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. 	ECF No. 1. 	Counsel for
Defendant subsequently filed a series of motions (ECF Nos. 31, 42, 51, 55) to continue the trial in
this matter to allow time for plea discussions and negotiations, which the Court granted. 	On
September 13, 2017, a Superseding Indictment was filed, which added a count of aiding and
abetting in the distribution of more than 50 grams of actual methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii), and 18 U.S.C. § 2. ECF No. 57.
Counsel for Defendant moved for additional continuances (ECF Nos. 61, 66, 82), which
the Court granted. On March 6, 2018, a Second Superseding Indictment was filed, which added
one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(1). ECF No. 84. Defendant’s
trial commenced on April 23, 2018. ECF Nos. 100, 102, 103, 143. Defendant was found guilty
on all three counts of the Second Superseding Indictment. 	ECF No. 109. 	Defendant was
Case 6:16-cr-60015-SOH Document 156 Filed 04/27/22 Page 1 of 6 PageID #:
<pageID>

2
subsequently sentenced to 240 months imprisonment with credit for time served in federal custody,
five years supervised release, and a $100 special assessment. ECF Nos. 134, 136, 137.
On June 26, 2019, Defendant appealed his conviction to the Eighth Circuit Court of
Appeals. 	ECF No. 138. 	The Eighth Circuit denied Defendant’s appeal with a judgment and
opinion filed on March 16, 2020. 	ECF Nos. 146, 146-1, 146-2. 	The Mandate from the Eighth
Circuit issued on June 25, 2020. ECF No. 146.
On July 13, 2021, Defendant filed a Motion to Vacate pursuant to 28 U.S.C. § 2255. ECF
No. 151. 	The Government responded in opposition. 	ECF No. 153. 	On February 7, 2022, the
instant Report and Recommendation was issued. ECF No. 154. On February 16, 2022, Defendant
filed his Objection to Judge Ford’s Report and Recommendation. ECF No. 155.
II. DISCUSSION
Defendant’s Motion to Vacate asserts three grounds for relief related to ineffective
assistance of counsel: (1) interfering with his speedy trial rights; (2) failure to suppress inculpatory
evidence; and (3) failure to present available exculpatory witnesses at trial. ECF No. 151.
Judge Ford’s Report and Recommendation recommends that Defendant’s Motion to
Vacate be denied and dismissed with prejudice and that any request for a Certificate of
Appealability be denied. 	ECF No. 154, p. 19-20. 	Judge Ford argues that Defendant’s § 2255
motion is untimely and that his claims of ineffective assistance of counsel have either been
previously adjudicated on direct appeal or have no support in the record. Id. at p. 19.
Defendant filed a single objection to Judge Ford’s recommendation. 	ECF No. 155.
Defendant argues that his motion was timely filed and subject to review on the merits. Id.
Pursuant to 28 U.S.C. § 636(b)(1), the Court will conduct a de novo review of the issues
related to any specific and timely objection made by Defendant to Judge Ford’s recommendation.
Case 6:16-cr-60015-SOH Document 156 Filed 04/27/22 Page 2 of 6 PageID #:
<pageID>

3
See also Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (timely objections shift a court’s
review from one which scrutinizes for plain error to one in which the issues are reviewed de novo).
A. Timeliness
Judge Ford concludes that Defendant’s motion should fail because it was filed outside of
the one-year limitation period and therefore time barred. ECF No. 154, p. 7-11. Judge Ford first
notes that a one-year limitation period applied to motions under § 2255, usually beginning on the
date a judgment of conviction becomes final. Id. at p. 7-8. Judge Ford further notes that the date
Defendant’s judgment became final was June 14, 2020, which was the deadline to petition the
Supreme Court for a writ of certiorari challenging the Eighth Circuit’s judgment denying
Defendant’s appeal on March 16, 2020. Id. at p. 8-9. Judge Ford concludes that Defendant’s date
of filing his § 2255 motion, July 7, 2021, is beyond the one-year deadline and thus Defendant’s
motion is untimely. Id. Judge Ford also determines that there are no statutory or equitable tolling
arguments presented by Defendant in his motion that could justify extending the standard one-year
deadline of June 14, 2021. Id. at p. 9-10.
Defendant’s lone objection argues that his § 2255 motion is timely and should be reviewed
on the merits. 	ECF No. 155, p. 1-3. 	Defendant concedes that under normal circumstances the
ninety-day period in which he had to petition the Supreme Court for a writ of certiorari would have
ended on September 14, 2020. Id. at p. 2-3. However, Defendant notes that the Supreme Court
issued an Order0F
1 on March 19, 2020, which stated that all current deadlines for petitioning for
certiorari that fell on that date or after would be extended from ninety days to one-hundred fifty
days after a judgment became final. Id. Defendant contends that this extension moved his deadline
1 Miscellaneous Order, March 19, 2020, https://www.supremecourt.gov/orders/courtorders/031920zr_d1o3.pdf. (“IT
IS ORDERED that the deadline to file any petition for a writ of certiorari due on or after the date of this order is
extended to 150 days from the date of the lower court judgment, order denying discretionary review, or order denying
a timely petition for rehearing. See Rules 13.1 and 13.3.”
Case 6:16-cr-60015-SOH Document 156 Filed 04/27/22 Page 3 of 6 PageID #:
<pageID>

4
to petition for certiorari to August 13, 2020, which would move the adjusted one-year deadline for
his § 2255 motion to August 13, 2021. Id. Therefore, Defendant concludes that he clearly filed
his § 2255 motion within the one-year period on July 7, 2021, and that his motion can be reviewed
on the merits. Id. at p. 3.
An individual confined pursuant to a criminal conviction under an Act of Congress may
move to vacate the sentence by claiming that the sentence was imposed in violation of the
Constitution or other law of the United States. 28 U.S.C. § 2255(a). There is a one-year period of
limitation to make a motion under § 2255 that begins on “the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(f)(1). A judgment of conviction becomes final when
the time to file a petition for certiorari that contests an appellate court’s confirmation of a
conviction expires. Clay v. United States, 537 U.S. 522, 525 (2003). The time period in which a
defendant has to petition for certiorari is typically ninety days from the date of an appellate court’s
confirmation of a conviction. Sup Ct. R. 13.1.
The Court finds that Defendant’s objection is correct and that his § 2255 is timely. Judge
Ford is correct that Defendant would normally have ninety days to petition for certiorari from the
date his conviction was confirmed by the Eighth Circuit. 	Defendant’s judgment of conviction
would typically become final ninety days after the issuance of the Eighth Circuit’s judgment
denying Defendant’s appeal of his conviction on March 16, 2020. Thus, the deadline to petition
for certiorari would have been June 14, 2020. However, Judge Ford did not consider the Order
issued by the Supreme Court on March 19, 2020, which extended the time periods to petition for
certiorari that had yet to elapse from ninety days to one hundred fifty days. Defendant’s deadline
to petition for certiorari was subject to the Supreme Court’s Order extending the deadline because
the Eighth Circuit confirmed his conviction on appeal only three days prior. The extension gave
Case 6:16-cr-60015-SOH Document 156 Filed 04/27/22 Page 4 of 6 PageID #:
<pageID>

5
Defendant an additional sixty days, or until August 13, 2020, in which he could petition for
certiorari. 	The one-year period in which Defendant could move under § 2255 correspondingly
shifted to end on August 13, 2021. Defendant filed his § 2255 motion on July 7, 2021. Therefore,
Defendant filed his motion within one year of his conviction becoming final. 	Accordingly,
Defendant’s § 2255 is timely and can be evaluated on the merits.
B. Substantive Issues in § 2255 Motion
Judge Ford concludes that even if Defendant’s motion could be evaluated on the merits, it
must still fail. ECF No. 154, p. 11-18. Judge Ford determines that Defendant’s first ground for
relief, that his counsel was ineffective for interfering with his speedy trial rights, was already
addressed during his initial appeal of his conviction and cannot be relitigated in a § 2255 motion.
Id. at p. 12-14. As to Defendant’s second ground for relief, that his counsel was ineffective for
failing to move to suppress certain evidence, Judge Ford determines that Defendant has failed to
demonstrate in any way that a motion to suppress the evidence would be meritorious. Id. at p. 14-
17. For Defendant’s final ground for relief, that his counsel was ineffective for failing to present
exculpatory witnesses, Judge Ford determines that Defendant has failed to show what exculpatory
testimony the unnamed witness could have provided and that this ground for relief is meritless.
Id. at p. 17-18. Judge Ford recommends that the Court dismiss Defendant’s § 2255 motion with
prejudice. 	Id. at p. 19-20. 	Judge Ford also recommends that no hearing is warranted for
Defendant’s motion and that no Certificate for Appealability under 18 U.S.C. § 2253 should be
issued because Defendant failed to make a substantial showing of the denial of a constitutional
right. Id. at p. 19.
Defendant made no objections to any of Judge Ford’s analysis or recommendations
regarding the merits of his § 2255 motion. Accordingly, the Court reviews these recommendations
Case 6:16-cr-60015-SOH Document 156 Filed 04/27/22 Page 5 of 6 PageID #:
<pageID>

6
for plain error. See Griffini, 31 F.3d at 692 (without a specific objection, review of a magistrate
judge’s finding is for plain error). Upon review, the Court finds Judge Fords’ recommendations
as to the merits of Defendant’s § 2255 are sound and the Court finds no plain error. Therefore, the
Court adopts Judge Ford’s recommendations regarding the merits of Defendant’s motion.
III. CONCLUSION
For the reasons stated above, the Court adopts Judge Ford’s Report and Recommendation
(ECF No. 154) in all aspects except for Judge Ford’s analysis and conclusion regarding the
timeliness of Defendant’s § 2255 motion. 	Accordingly, the Court finds that Defendant’s Motion
to Vacate under 28 U.S.C. § 2255 (ECF No. 151) should be and hereby is DENIED WITH
PREJUDICE. No Certificate of Appealability under 18 U.S.C. § 2253 shall be issued.
IT IS SO ORDERED, this 27th day of April, 2022.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
Case 6:16-cr-60015-SOH Document 156 Filed 04/27/22 Page 6 of 6 PageID #:
<pageID>