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Ellis v. United States

United States District Court, D. Maine

August 8, 2017

RAYMOND L. ELLIS, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AFFIRMING THE RECOMMENDED DECISIONS OF THE MAGISTRATE JUDGE

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         In this 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 amend.

         I. BACKGROUND

         On July 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).

         On 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).

         On 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.

         II. DISCUSSION

         The 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 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.

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 id.

         Furthermore, 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 ...


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