USA v. Howard

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER DISMISSING DEFENDANT'S
) MOTION TO VACATE, CORRECT OR
vs. ) SET ASIDE SENTENCE UNDER
) 28 U.S.C. § 2255
Lonnie Alonzo Howard, )
) Case No. 1:17-cr-014
Defendant. )
Lonnie Alonzo Howard, )
)
Petitioner, )
)
vs. ) Case No. 1:22-cv-160
)
United States of America, )
)
Respondent, )
Before the Court is the Defendant’s motion to vacate, correct, or set aside a sentence pursuant
to 28 U.S.C. § 2255, filed on October 7, 2022. See Doc. No. 126. The Defendant, who raises
multiple issues of ineffective assistance of counsel, did not file a brief in support of his motion. The
United States filed a motion to dismiss on June 12, 2023. See Doc. No. 138. The Defendant did not
file a response to the Government’s motion and the time for doing so has passed. For the reasons
set forth below, the Government’s motion to dismiss is granted and the Defendant’s motion is
dismissed as untimely.
I. BACKGROUND
On July 11, 2019, the Court sentenced Howard to 210 months imprisonment and three years
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of supervised release after a jury found him guilty of possession of a firearm and ammunition by a
convicted felon. See Doc. No. 97. Howard appealed. On October 6, 2020, the Eighth Circuit Court
of Appeals affirmed his conviction. See Doc. No. 14. Howard did not request a writ of certiorari
from the United States Supreme Court.
On October 7, 2022, Howard filed the current motion to vacate under 28 U.S.C. § 2255.
Howard did not file a brief with his motion but twice requested additional time to do so. See Doc.
Nos. 128 and 133. The Court granted both motions. See Doc. Nos. 132 and 134. The second
extension of time gave Howard until March 3, 2023, to file a brief in support of his motion. Howard
has yet to file a brief in support of his motion.
On May 18, 2023, the Court issued an order giving Howard thirty (30) days to show why his
motion should not be dismissed for failure to prosecute, file a brief in support of his motion, and
explain why his motion is not time-barred. On June 12, 2023, the Government filed a motion to
dismiss Howard’s Section 2255 motion as being time-barred. See Doc. Nos. 137 and 138. Howard
did not make any filing in response to the Court’s order or respond to the Government’s motion.
II. STANDARD OF REVIEW
A prisoner in custody may move the court which imposed his sentence to vacate, set aside
or correct the sentence on the ground that it was imposed “in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon,
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determine the issues and make findings of fact and conclusions of law with respect thereto.” 28
U.S.C. § 2255(b). “If the court finds that the judgment was rendered without jurisdiction, or that the
sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has
been such a denial or infringement of the constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear
appropriate.” 28 U.S.C. § 2255(b).
III. LEGAL DISCUSSION
A. THE ONE YEAR PERIOD OF LIMITATIONS
28 U.S.C. § 2255(f) requires a movant to file a motion within one year of the judgment
becoming final. Specifically, the statute reads:
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of –
(1) the date on which the judgment of conviction becomes final;
(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 governmental action;
(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).
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The Eighth Circuit Court of Appeals affirmed Howard’s conviction on October 6, 2020. See
Doc. No. 114. Howard filed a motion for rehearing and rehearing en banc which the Eighth Circuit
denied on December 30, 2020. Howard had 1501 days to seek a writ of certiorari in the United States
Supreme Court, but he did not do so. Therefore, Howard’s conviction became final on May 29,
2021, when the time to seek a writ of certiorari expired. Clay v. United States, 537 U.S. 522, 527
(2003) (“[f]inality attaches when the Supreme Court affirms a conviction on the merits on direct
review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition
expires”). Howard then had one year, or until May 29, 2022, to timely file a Section 2255 habeas
motion. Howard filed his motion on October 1, 2022, when he signed his motion and placed it in
the prison mail system. Thus, the motion is time-barred.
B. STATUTORY PROVISIONS OF 28 U.S.C. § 2255(f)(2-4)
The one-year period within which to file a Section 2255 motion may, in an appropriate case,
begin on the date on which an impediment to making the motion is removed. 28 U.S.C. §
2255(f)(2). For this provision to apply, the impediment must have been “created by governmental
action in violation of the Constitution or laws of the United States” and the movant must have been
“prevented from making a motion by such governmental action.” Id. The one-year period within
which to file may, in an appropriate case, begin on the date on which an asserted right was initially
recognized by the United States Supreme Court, “if that right has been newly recognized . . . and
1Due to the COVID-19 pandemic, the United States Supreme Court entered an Order on March 19, 2020,
extending the deadline to file a petition for a writ of certiorari due on or after the date of the order from 90 to 150
days from the date of the lower court judgment. The extension from 90 days to 150 days was rescinded by Order of
the Supreme Court entered on July 19, 2021.
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made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). The one-year
period within which to file a Section 2255 motion may also, in an appropriate case, begin on 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)(4).
Howard’s Section 2255 motion alleges no facts supporting any of these grounds which would
have extended the limitations period. Howard alleges no right newly recognized by the United States
Supreme Court made retroactively applicable to his case which might support an extension of time
to file his motion. Nor does Howard allege that he recently discovered new facts supporting his
claims or that the factual predicates for his claims could not have been discovered through the
exercise of due diligence within the limitations period. Consequently, the Court finds there is no
factual basis to find that any of the Section 2255(f)(2)-(4) statutory provisions extend the one-year
filing period beyond the date Howard’s conviction became final.
C. EQUITABLE TOLLING
The Eighth Circuit has recognized that the doctrine of equitable tolling is available to a
Section 2255 movant, but only “under limited conditions, for example, where extraordinary
circumstances beyond a prisoner’s control prevent the timely filing.” See Gassler v. Bruton, 255
F.3d 492, 495 (8th Cir. 2001); United States v. Martin, 408 F.3d 1089, 1092 (8th Cir. 2005). The
use of equitable procedures should be infrequent. See Flanders v. Graves, 299 F.3d 974, 976 (8th
Cir. 2002). Equitable procedures will not be applied if the habeas movant has not diligently pursued
his rights. Frinch v. Miller, 491 F.3d 424, 427 (8th Cir. 2007). “Equitable tolling is an exceedingly
narrow window of relief.” Maghee v. Ault, 410 F.3d 473, 476 (8th Cir. 2005). Howard has not
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raised the issue of equitable tolling and the record reveals no circumstances which warrant the
application of the doctrine.
IV. CONCLUSION
The Court has carefully reviewed the entire record, the parties’ arguments, and the relevant
law and concludes Howard’s Section 2255 motion is time barred. Accordingly, the Court GRANTS
the Government’s motion to dismiss (Doc. No. 138) and DISMISSES Howard’s motion to vacate,
correct, or set aside a sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 126) as untimely. The Court
also issues the following ORDER:
1) The Court certifies that any appeal would be frivolous, could not be taken in
good faith, and may not be taken in forma pauperis.
2) Based upon the entire record before the Court, dismissal of the motion is not
debatable, reasonably subject to a different outcome on appeal, or otherwise
deserving of further proceedings. Therefore, a certificate of appealability will
not be issued by this Court. See Tiedeman v. Benson, 122 F.3d 518, 252 (8th
Cir. 1997) (finding that a district court possesses the authority to issue
certificates of appealability under Section 2255(c)). If the petitioner desires
further review of his petition, he may request the issuance of a certificate of
appealability by a circuit judge of the Eighth Circuit Court of Appeals.
IT IS SO ORDERED.
Dated this 14th day of August, 2023.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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