United States District Court, S.D. Illinois
ORDER ON JOHNSON-BASED PETITION TO VACATE/CORRECT
SENTENCE UNDER 28 U.S.C. 2255
Michael J. Reagan United States District Judge.
No. 10-cr-30019-MJR (“the underlying case”),
Nicholas Matthew Hall and co-Defendant Jonathan Bohn were
indicted on two charges of bank robbery in violation of 18
U.S.C. 2113 (Count 1 and 2) and one charge of carrying and
using a firearm during a crime of violence in violation of 18
U.S.C. 924(c) (Count 3). All three counts alleged that Hall
aided and abetted Bohn in the commission of the crimes.
October 2010, Hall pled guilty to the charges, via a written
plea agreement and stipulation of facts. In January 2011, the
undersigned sentenced Hall to 70 months in prison on Counts 1
and 2 (running concurrently with each other) plus 84 months
in prison on Count 3 (running consecutively to the 70-month
term). This resulted in a total term of imprisonment of 154
months, and was followed by a 5-year term of supervised
release. Judgment was entered February 7, 2011.
appeal was taken. On July 18, 2016, Hall filed a petition to
vacate, set aside, or correct his sentence under 28 U.S.C.
2255, which was opened as the above-captioned civil case. The
petition is based on Johnson v. United States, ___
U.S. ___, 135 S.Ct. 2551 (2015), which found unconstitutional
the residual clause of the Armed Career Criminal Act, 18
U.S.C. 924(e)(2)(B)(ii), and Welch v. United States,
___ U.S. ___, 136 S.Ct. 1257 (2016), which held
Johnson retroactively applicable to cases on
threshold review under Rule 4 of the Rules Governing Section
2255 Proceedings, the undersigned did not summarily dismiss
the petition. The Court ordered briefing but noted two
potential obstacles to relief - (1) Hall's petition may
have been filed outside of the limitation period set in 28
U.S.C. 2255(f); and (2) Hall's petition may be barred by
a waiver provision contained in the plea agreement. The
undersigned directed the parties to address these issues in
their briefs, i.e., the timeliness of Hall's petition,
the effect of the waiver provision, and whether Hall has a
viable Johnson-based claim for relief.
to Administrative Order 176, the Court appointed the Federal
Public Defender's Office for the Southern District of
Illinois to assist Hall in presenting any valid
Johnson-based argument. Assistant Federal Public
Defender Daniel G. Cronin entered his appearance on
Hall's behalf, and briefs were filed as follows: Mr.
Cronin's brief on behalf of Petitioner Hall (Doc. 5), a
permitted pro se supplement filed by Petitioner Hall
in letter form (Doc. 6), the United States' response
(Doc. 8), and a reply brief by Mr. Cronin on Hall's
behalf (Doc. 9). The matter was fully ripe on November 14,
2016. For the reasons stated below, the Court denies the
Rule 8(a) of the Rules Governing Section 2255 Proceedings,
this Court must determine whether an evidentiary hearing is
warranted. Not every petition warrants a hearing. Boulb
v. United States, 818 F.3d 334, 339 (7th Cir.
2016). See also Martin v. United States, 789 F.3d
703, 706 (7th Cir. 2015) (“It is
well-established that a district court need not grant an
evidentiary hearing in all § 2255 cases, ” such as
where the record conclusively shows the prisoner is not
entitled to relief.); Kafo v. United States, 467
F.3d 1063, 1067 (7th Cir. 2006) (to justify a
hearing, petition must be accompanied by a detailed affidavit
which shows that the petitioner has actual proof of the
allegations going beyond mere unsupported assertions). The
record before this Court conclusively reveals that Hall is
not entitled to relief, so no hearing is needed.
Timeliness of Petition
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one-year period of limitations for prisoners to
file petitions seeking to modify or vacate their sentences
under 28 U.S.C. 2255. Usually the period runs from the date
on which the judgment of conviction became final. 28 U.S.C.
2255(f); Clay v. United States, 537 U.S. 522, 524
one-year limitation period is triggered by the latest of four
(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).
statute does not provide for extensions of time. However, the
limitation period is procedural not jurisdictional, and it
can be equitably tolled. Boulb, 818 F.3d at 339,
citing Holland v. Florida, 560 U.S. 631, 645, 649
judgment in the underlying case was entered on February 7,
2011. The petition obviously was not filed within one year of
his judgment of conviction becoming final. But Hall invoked
Johnson, and he had had one year from the date that
decision was announced (June 26, 2015) to file his petition,
since § 2255(f)(3) “allows a fresh year from
‘the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
… made retroactively applicable to cases on collateral
review.'” Stanley v. United States, 827
F.3d 562, 564 (7th Cir. 2016), quoting 28
§ 2255 petition was received in the Clerk's Office
on July 18, 2016. As suggested in the threshold review Order,
the Court applies the “prison mailbox rule,
” using the date Hall gave his petition to
prison authorities as opposed to the date is was received by
the clerk's office. See Rule 3(d) of Rules
Governing Section 2255 Proceedings; Boulb, 818 F.3d
at 338, n.3.
certificate of service on Hall's petition attests that he
placed the petition in the prison mailing system on July 13,
2016. That date, too, is outside the fresh one-year period
triggered by Johnson, which ended on June 26, 2016.
So the petition is time-barred unless saved by the doctrine
of equitable tolling.
qualify for equitable tolling, a petitioner must show
“(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Boulb, 818 F.3d
at 339-40, quoting Holland, 560 U.S. at 649.As noted
above, equitable tolling is rarely applied; it is reserved
for extraordinary circumstances “far beyond the
litigant's control that prevented timely filing.”
Boulb, 818 F.3d at 340, quoting Socha v.
Boughton, 763 F.3d 674, 684 (7th Cir. 2014).
Boulb, 818 F.3d at 340-41, the Court rejected the
argument that equitable tolling applied where the
petitioner's mental deficiencies may have affected his
ability to comply with the filing deadline. Likewise, in
Nolan v. United States, 358 F.3d 480, 486
(7th Cir. 2004), the Seventh Circuit declined to
apply equitable tolling.
Court in Nolan clarified that equitable tolling
does apply to § 2255 petitions but found the
petitioner not entitled to application of the doctrine,
because the reasons offered for his late filing fell
“far short of what is needed to justify tolling the
statute of limitations … [and were] not the kind of
case-specific, unanticipated circumstances we have
required.” Indeed, the Court remarked: “Equitable
tolling of the statute of limitations is such exceptional
relief that ‘we have yet to identify a circumstance
that justifies equitable tolling in the collateral relief
context'” such as a § 2255 petition.
Nolan, 358 F.3d at 484, quoting Modrowski v.
Mote, 322 F.3d 965, 967 (7th Cir. 2003).
Similarly, in Tucker v. Kingston, 538 F.3d 732, 734
(7th Cir. 2008), in the context of a § 2254
habeas petition, the Seventh Circuit declared as to equitable
tolling being applied on collateral review: “Indeed, we
have yet to identify a petitioner whose circumstances warrant
was a 2004 decision. Kingston came four years later.
Two 2014 Seventh Circuit cases shed light on what might
warrant equitably tolling the statute of limitations for a
habeas petition. In Davis v. Humphreys, 747 F.3d
497, 500 (7th Cir. 2014), the Court held that
mental incompetence could, on the right set of
facts, satisfy the equitable tolling doctrine. In
Socha, the Court emphasized that each of several
facts standing alone - e.g., a prisoner's incarceration,
his placement in administrative segregation, his lack of
legal training, his lack of representation - did not justify
equitable tolling, but a combination of such factors
might piece together to form a whole that did
support application of the doctrine. “The mistake made
by the district court … was to conceive of the
equitable tolling inquiry as the search for a single trump
card, rather than an evaluation of the entire hand that the
petitioner was dealt.” Socha, 763 F.3d at 686.
The lesson of Socha is that in assessing equitable
tolling, the district court must use a flexible,
fact-specific standard that encompasses all of the
petitioner's circumstances and the cumulative effect they
had on his ability to timely file. Id.
months ago, in the analogous context of a § 2254
petition, the Seventh Circuit summarized:
Although not a “chimera-something that exists only in
the imagination, ” Socha v. Boughton, 763 F.3d 674,
684 (7th Cir. 2014), equitable tolling is an
extraordinary remedy that is “rarely
granted.”Obriecht v. Foster, 727 F.3d 744, 748
(7th Cir. 2013)…. A habeas petitioner is entitled to
equitable tolling only if he shows “(1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S.
The habeas petitioner bears the burden of demonstrating both
elements of theHollandtest.Williams v.
Buss, 538 F.3d 683, 685 (7th Cir. 2008). If the
petitioner cannot demonstrate either of the two elements,
then equitable tolling will not be applied. Menominee
Indian Tribe of Wisconsin v. United States, ___ U.S. ___, 136
S.Ct. 750, 755-56 … (2016);Lawrence v. Florida,
549 U.S. 327, 336-37 … (2007) (rejecting equitable
tolling without addressing diligent pursuit because the
petitioner clearly could not demonstrate extraordinary
Carpenter v. Douma, 840 F.3d 867, 870
(7th Cir. 2016).
diligence prong requires the petitioner to
demonstrate that he was reasonably diligent in pursuing his
rights “throughout the limitations period and until he
finally filed his untimely habeas petition….”
Id.And the extraordinary
circumstances prong requires the petitioner to show
that the circumstances that caused his delay (preventing the
timely filing) were “both extraordinary and
beyond [his] control.” Carpenter, 840 F.3d at
872, quoting Menominee Indian, 136 S.Ct. at 756.
the Court in Carpenter held the petitioner not
entitled to equitable tolling of the limitations period.
Id. The Seventh Circuit found the petitioner did not
exercise reasonable diligence in filing his petition. The
Court also concluded that the combination of circumstances
cited by the petitioner (lack of legal training, lack of
appointed counsel during portions of his appeal process,
physical and mental health issues, removal from his
correctional facility to address health problems, inability
to obtain a loan, and conflicts with appointed counsel during
his appeal) were “nothing but ordinary” and did
not justify tolling the statute of limitations.
Carpenter, 840 F.3d at 872-73.
undersigned reaches the same conclusion as to Hall's
petition. The dual reasons offered in defense of Hall's
untimely filing (submitted via pro se letter which
the undersigned permitted as a supplement to the petition)
are (1) he was in administrative segregation unable to get
into his property and “mail the paperwork …
until the date had passed, ” and (2) his lack of
understanding of the holding of Johnson - “If
I would have known ...