United States District Court, D. Maine
RAYMOND L. ELLIS, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER AFFIRMING THE RECOMMENDED DECISIONS OF THE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
action, Raymond L. Ellis, Jr. moved pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence of
120 months imprisonment. The Magistrate Judge recommended
that the Court deny Mr. Ellis's motion. Mr. Ellis then
moved to amend his § 2255 motion. The Magistrate Judge
entered a second Recommended Decision, in order to allow a
separate de novo review by this Court, which recommended that
the Court deny Mr. Ellis's motion to amend. The Court now
affirms the Magistrate Judge's Recommended Decisions and
denies Mr. Ellis's § 2255 motion and his motion to
7, 2009, Mr. Ellis pleaded guilty to theft of firearms from a
federal firearms licensee, conspiracy to commit theft, and
possession of firearms as a convicted felon.
Information at 1-4 (ECF No. 5); Min. Entry
(ECF No. 11). On December 29, 2009, the Court sentenced Mr.
Ellis to 120 months in prison on each of Counts 1 and 3, and
60 months on Count 2, all to be served concurrently.
J. at 2 (ECF No. 29). Mr. Ellis appealed his
sentence to the United States Court of Appeals for the First
Circuit and on March 17, 2011, the First Circuit affirmed the
sentence. Notice of Appeal (ECF No. 31); J.
at 1 (ECF No. 55).
January 4, 2016, Mr. Ellis moved pursuant to 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence. Mot.
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (ECF No.
59) (Def.'s Mot.). He argues that the Court
erred as a matter of law by enhancing his sentence pursuant
to U.S.S.G. § 2K2.1(b)(6) and contends that the
applicable guideline range was 92 to 115 months, not the 135
to 168 months found by the Court at sentencing. Id.
at 4; id. Attach. 1 Mem. of Law at 1-3
(Def.'s Mem.). Mr. Ellis also argues that his
counsel was ineffective for failing to raise this issue.
Def.'s Mot. at 5; Def.'s Mem. at
4-7. Mr. Ellis requests resentencing based on the alleged
correct guideline range of 92 to 115 months. Def.'s
Mot. at 13; Def.'s Mem. at 7. On February
3, 2016, the Magistrate Judge ordered the Government to
respond and address only the statute of limitations issue.
Order to Answer (ECF No. 62). The Government
responded on June 3, 2016. Gov't's Resp. to
Pet'r's Mot. Pursuant to 28 U.S.C. § 2255
Insofar as Statute of Limitations Issue is Presented; and
Mot. for Summ. Dismissal (ECF No. 69). Mr. Ellis replied
on July 1, 2016. Pet'r's Reply (ECF No. 70).
November 14, 2016, the Magistrate Judge entered a recommended
decision as to Mr. Ellis's motion under § 2255.
Recommended Decision on 28 U.S.C. § 2255
Mot. (ECF No. 72) (Rec. Dec. § 2255).
On December 15, 2016, Mr. Ellis filed a motion to amend the
original § 2255 motion. Mot. to Amend (ECF No.
73). On December 30, 2016, the Government filed a response to
the motion to amend. Gov't's Resp. to
Pet'r's Mot. to Amend his Untimely 28 U.S.C.
§ 2255 Pet. and Renewed Mot. for Summ.
Dismissal (ECF No. 74) (Gov't's Resp. to
Amend Mot.). Mr. Ellis replied on January 30, 2017.
Pet'r's Resp. to the Gov't's Rebutt[al]
of his 2255 (ECF No. 75). Based on the amended motion
and subsequent response and reply, on March 10, 2017, the
Magistrate Judge entered a second recommendation in order to
afford the Court the opportunity to apply the same standard
of review to both decisions. Recommended Decision on Mot.
to Amend at 1 n.1 (ECF No. 76) (Rec. Dec.
Amend). Mr. Ellis objected to both of the recommended
decisions on April 24, 2017. Resp. (ECF No. 79). The
Government did not file a reply to Mr. Ellis's objection.
Magistrate Judge recommended that the Court deny Mr.
Ellis's 28 U.S.C. § 2255 motion. Rec. Dec.
§ 2255 at 7. As the Magistrate Judge pointed out,
Mr. Ellis's claims are subject to a one-year statute of
limitations, 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.
Rec. Dec. § 2255 at 5 (citing 28 U.S.C. §
2255(f)). Mr. Ellis did not file a petition for certiorari,
so the one-year limitation period under 28 U.S.C. §
2255(f)(1) began to run upon the expiration of the time to
file a petition for certiorari and expired one year later,
which in this case would have been June 2012. Id. at
5-6. Because Mr. Ellis placed his motion in the prison
mailing system in December 2015, more than three years after
the expiration of the limitations period, his § 2255
motion is untimely. See Id. at 6. Additionally, as
noted by the Magistrate Judge, Mr. Ellis has not alleged any
facts or made any arguments to suggest that the limitations
period is governed by § 2255(f)(2), (3), or (4). See
the Magistrate Judge correctly stated that Mr. Ellis's
limited knowledge of the law and limited access to legal
materials or the courts during periods when he was placed in
more restrictive housing conditions “do not in
themselves” justify the “appropriate
instances” required for equitable tolling. See
Id. at 6-7 (citing Lattimore v. Dubois, 311
F.3d 46, 55 (1st Cir. 2002)). Moreover, as noted by the
Magistrate Judge, Mr. Ellis's lack of access to legal
materials due to segregation did not occur within the
one-year limitation period. Id. Rather, Mr.
Ellis's access to legal materials and the courts were
only restricted after the ...