Stacks v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:20-cv-00497-FDW

(CRIMINAL CASE NO. 3:11-cr-00371-FDW-DCK-1)

JOHN STACKS, )

)

Petitioner, )

)

vs. ) ORDER

)

UNITED STATES OF AMERICA, )

)

Respondent. )

___________________________________ )

THIS MATTER is before the Court on the Petitioner’s Motion to Vacate Sentence under

28 U.S.C. § 2255 [CV Doc. 1],1 and the Government’s Motion to Dismiss Petitioner’s Motion to

Vacate [CV Doc. 5].

I. BACKGROUND

In the early morning hours of March 18, 2011, Charlotte Mecklenburg police officers were

conducting surveillance on Westpark Drive. At the time, the area was known as a “hot spot for

breaking and entering motor vehicle cases.” United States v. Stacks, 571 Fed. App’x 163, 165

(4th Cir. 2014). Officers noted a brown Cadillac being driven by a man later identified as

Petitioner John Stacks. Id. Petitioner drove in and out of hotel parking lots, driving up and down

the rows of parked cars, but did not park, stop to pick anyone up, or drop anyone off. [CR Doc.

14: Suppression Hearing Tr.]. The officers eventually effected a traffic stop of the Cadillac. [CR

Doc. 45 at ¶ 5: Presentencing Investigation Report (PSR)]. Petitioner gave his driver’s license to

1 Citations to the record herein contain the relevant document number referenced preceded by either the

letters “CV,” denoting that the document is listed on the docket in the civil case file number 3:20-cv-00497-

FDW, or the letters “CR,” denoting that the document is listed on the docket in the criminal case file number

3:11-cr-00371-FDW-DCK-1.

the officers, who noticed a camouflage jacket spread across the back seat of Petitioner’s car, as if

to conceal something. [Id.]. When the officers asked Petitioner to exit his car, he refused and sped

away. [Id.]. The officers pursued Petitioner but were unsuccessful in apprehending him. [Id.].

Later than morning, Diabete Pratt, a guest at one of the area hotels, went for a walk and

saw a gun “sitting on the ground.” [CR Doc. 55 at 56: Trial Tr.]. The firearm “was laying

underneath some bushes by a tree.” [Id.]. Pratt picked up the gun and gave it to a police officer

who was nearby. [Id.]. Pratt found the gun about 100 yards from where officers had stopped

Petitioner’s vehicle. [CR Doc. 45 at ¶ 5].

Officers arrested Petitioner three days later on related state charges. [Id. at ¶ 6]. While he

was detained at Mecklenburg County Jail, Petitioner made several phone calls during which he

discussed the traffic stop and his encounter with law enforcement. [CR Doc. 56 at 36: Trial Tr.].

In one of his first calls, Petitioner told an unidentified female, “man you know they found the

burner, right?” [Govt. Trial Ex. 8a]. Later, Petitioner told her, “I skated on they ass, I had to

throw my iron.” [Govt. Tr. Ex. 9a]. When discussing the traffic stop and the officers’ request to

search his car, Petitioner explained, “I couldn’t let ‘em do that (inaudible) that iron in there like

that.” [Id.].

In a subsequent call, the unidentified female asked, “Oh so you had a gun in the car.”

[Govt. Tr. Ex. 10a]. Petitioner responded, “Yeah (inaudible) … had to do it … I had to run.” [Id.].

The female asked, “Either way it’s gonna be trouble right?” [Id.]. Petitioner answered, “I mean

not, I mean, nah … with them finding that gun, that’s trouble but ….” [Id.]. Later Petitioner

stated, “[T]hey didn’t see when I threw it, they ain’t seen me when I threw it. I don’t know what

made ‘em search that shit.” [Govt. Tr. Ex. 11a]. In one of the final calls, Petitioner offered, “They

done got my iron … they don’t got my iron.” [Govt. Tr. Ex. 12a].

On November 15, 2011, Petitioner was charged in a Bill of Indictment with one count of

possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). [CR Doc. 1:

Bill of Indictment]. Counsel was appointed for Petitioner. Following the denial of Petitioner’s

motion to suppress, Petitioner proceeded to trial. [See Docs. 10, 23]. Petitioner’s trial began on

June 5, 2012. At trial, the parties stipulated that Petitioner “had previously been convicted of a

crime punishable by imprisonment for more than one year.” [CR Doc. 55 at 27]. The Government

presented testimony of nine witnesses, as well as recordings of the incriminating phone calls

Petitioner made from jail. Stacks, 571 Fed. App’x at 168. Pratt testified to the circumstances of

finding the gun outside a hotel. [CR Doc. 55 at 56]. Pratt also testified that he returned about a

week later to show police where he had found the gun. [Id. at 57]. Charlotte Mecklenburg Police

Officer Jeremiah Logsdon testified that on the morning of March 18, 2011, he was parked on

Westpark Drive when Pratt approached him and told him that he, Pratt, had found a gun that he

wanted to turn over. [Id. at 59-60]. Pratt then gave Logsdon a chrome Cobra 380 pistol and

pointed to some bushes and a tree near the entrance to the hotel, indicating that was where he had

found the gun. [Id. at 60, 62-63]. After hearing all the evidence, the jury found Petitioner guilty

of the felon-in-possession charge. [CR Doc. 39: Jury Verdict].

Before sentencing, a probation officer prepared a PSR. [CR Doc. 43: PSR]. The probation

officer recommended a base offense level of 20 because Petitioner had committed the instant

offense after sustaining one conviction for a crime of violence, that is, robbery with a dangerous

weapon. [Id. at ¶ 12 (citing U.S.S.G. §2K2.1)]. The probation officer recommended application

of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), enhancement because Petitioner

had at least three prior convictions for a violent felony or serious drug offense, or both, which were

committed on different occasions. The probation officer found a total offense level (TOL) of 33

under the ACCA. [Id. at ¶ 18 (citing U.S.S.G. §4B1.4)]. With a TOL of 33 and criminal history

category of IV, the recommended guideline range was 188 to 235 months’ imprisonment. [Id. at

¶ 49]. Under § 924(e)(1), the statutory mandatory minimum sentence was 15 years, and the

statutory maximum was life. [Id. at ¶ 48].

Petitioner was sentenced on January 15, 2013. The Court accepted the PSR as written and

recognized the sentencing range of 188 to 235 months. [CR Doc. 57 at 3: Sentencing Tr.].

Petitioner’s counsel argued for a sentence of 188 months, at the low end of the guidelines range,

based on the 18 U.S.C. § 3553(a) sentencing factors. [Id. at 4]. The Government argued for a

sentence at the middle to high end of the guidelines range based on these factors. [Id. at 7-11].

The Court sentenced Petitioner to a term of imprisonment of 212 months. [Id. at 17-18]. Judgment

on Petitioner’s conviction was entered on January 23, 2013. [CR Doc. 49: Judgment]. Petitioner

timely appealed his conviction and sentence. [CR Doc. 51: Notice of Appeal]. On May 8, 2014,

the Fourth Circuit affirmed this Court’s Judgment, rejecting Petitioner’s challenge to the denial of

his motion to suppress. Stacks, 571 Fed. App’x at 165. Petitioner did not petition for certiorari.

Six years later, on September 2, 2020, Petitioner filed the instant Section 2255 Motion to

Vacate, Set Aside or Correct Sentence. [CV Doc. 1]. Petitioner argues that he is actually innocent

of being a felon-in-possession of a firearm based on newly discovered evidence and Rehaif v.

United States, 139 S. Ct. 2191 (2019);2 and that he received ineffective assistance of counsel with

respect to the cross-examination of a witness, because his attorney did not challenge his sentence,

and because his attorney did not argue that the grand jury and the petit jury should have found that

Petitioner knew he “belonged to the relevant category of persons barred from possessing a

2 In Rehaif, the Supreme Court “conclude[d] that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2),

the Government must prove both that the defendant knew he possessed a firearm and that he knew he

belonged to the relevant category of persons barred from possessing a firearm.” Rehaif, 139 S. Ct. at 2200.

firearm.” [CV Doc. 1 at 4]. Petitioner claims that his motion is timely based on newly discovered

evidence, the Supreme Court’s decision in Rehaif, and ineffective assistance of appellate counsel.

Petitioner also claims that he contracted Covid-19 and “has been very sick the past 6 months &

the system has been down.” [Id. at 11]. Petitioner attaches to his motion an “affidavit” of Diabate

Pratt, the man who found the firearm under the bushes 100 yards from where Petitioner had been

stopped. [CV Doc. 1 at 13-14]. The statement is notarized but is not sworn or signed under penalty

of perjury. It provides:

I saw someone walking fast from the area I found the gun they

looked like they droped something that’s what made me look in that

area when I walked by the bushess. So I picked up the gun and

turned it in to the cop I saw parked across the street.

[Id. at 14 (errors uncorrected)].

The Government moved to dismiss Petitioner’s motion as time barred and, alternatively,

responded on the merits. [CV Doc. 5].

This matter is now ripe for adjudication.

II. ANALYSIS

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the

“AEDPA”). Among other things, the AEDPA amended 28 U.S.C. § 2255 by imposing a one-year

statute of limitations period for the filing of a motion to vacate. Such amendment provides:

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 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).

Here, Petitioner’s conviction became final for purposes of Section 2255(f) on August 6,

2014, when the 90-day period for filing a petition for writ of certiorari expired. See Clay v. United

States, 537 U.S. 522, 532 (2003) (holding the limitations period begins to run when the time for

seeking review expires). Moreover, Rehaif was decided on June 21, 2019, and assuming arguendo

that Rehaif affords Petitioner relief, Petitioner did not file his Section 2255 motion until September

2, 2020. [CV Doc. 1 at 12]. It is, therefore, untimely.

To be sure, the so-called affidavit by Pratt was not newly discovered evidence for purposes

of § 2255(f)(4). Petitioner claims that the affidavit was “not available until this year.” [CV Doc.

1 at 11]. This conclusory assertion, however, is insufficient. Johnson v. United States, 259

F.Supp.3d 356, 359 (D. Md. 2017) (holding relevant issue is whether petitioner “had the capability

to make such a discovery through the exercise of due diligence”). Pratt testified in the trial in this

matter, eight years ago, and Petitioner was indisputably aware of his existence. See United States

v. Segers, 271 F.3d 181, 186 n.5 (4th Cir. 2001) (rejecting timeliness claim based on “new

evidence,” including affidavits, where petitioner should have known “by due diligence” of the

existence of a witness present at the crime scene). This claim is untimely. See Mayle v. Felix,

545 U.S. 644 (2005) (recognizing timeliness of § 2255 claims is considered on a claim-by-claim

basis).

Additionally, Petitioner has not stated adequate grounds for the application of equitable

tolling. To be entitled to equitable tolling, “an otherwise time-barred petitioner must present ‘(1)

extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that

prevented him from filing on time.’” United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)

(quoting Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003), cert. denied, 541 U.S. 905, 124 S. Ct.

1605 (2004)). A petitioner must show he has been “pursuing his rights diligently.” Holland v.

Florida, 560 U.S. 631, 649 (2010). Further, equitable tolling is limited to “rare instances – where

due to circumstances external to the party’s own conduct – it would be unconscionable to enforce

the limitation period against the party and gross injustice would result.” Whiteside v. United

States, 775 F.3d 180, 184 (4th Cir. 2014) (quoting Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.

2003)).

Petitioner contends that he was “unable to review & do the proper paper work as needed”

because he “caught Covid 19” and “has been very sick the past 6 months,” and he “put[ ] faith in

[his] appeal attorney.” [CV Doc. 1 at 11]. Petitioner also claims that “the system has been down.”

[Id.]. These claims are insufficient to implicate equitable tolling. Petitioner cannot fault his

appellate attorney for any failure to timely file a motion to vacate over the past six years.

Moreover, Petitioner does not contend or support that his appellate attorney agreed to file a motion

to vacate on his behalf. Petitioner’s claim that “the system has been down” is too vague and

conclusory to warrant a finding of extraordinary circumstances or that Petitioner was prevented

from filing on time. As to Petitioner’s claim of recent illness, Petitioner fails to explain why he

was unable to bring his claims over the preceding nearly six years. Finally, as to Petitioner’s

Rehaif-based claim, Petitioner does not explain how he diligently pursued his rights prior to his

illness, or how his illness affected his ability to bring the present motion.3 Under these

3 Moreover, the Government filed medical records in Petitioner’s criminal proceedings in response to

Petitioner’s motion for compassionate release [See CR Doc. 72]. These records show Petitioner suffered

some nocturnal shortness of breath in the weeks following his June 1, 2020 Covid-19 diagnosis, but do not

remotely support Petitioner’s claim that he was “very sick” from Covid-19 for “the past 6 months.” [See

circumstances, his claim of illness does not establish an extraordinary circumstance warranting

equitable tolling. See United States, 22 Fed. App’x 226, 227 (4th Cir. 2001) (holding “untimely

and conclusory allegations of illness are insufficient to equitably toll the statute of limitations”);

Yarborough v. Burger King Corp, 406 F. Supp.2d 605, 608 (M.D.N.C. 2005) (“Illness is rarely

valid grounds for the application of equitable tolling.”). Nor does it appear that a gross injustice

would result from enforcing the limitations period against Petitioner. See Whiteside, 775 F.3d at

184.

As such, Petitioner’s claim is untimely under § 2255(f) and equitable tolling does not apply.

The Court will, therefore, dismiss Petitioner’s motion to vacate.4

III. CONCLUSION

Having concluded that Petitioner’s motion to vacate is untimely under § 2255(f)(1), the

Court will grant the Government’s motion to dismiss.

IT IS, THEREFORE, ORDERED that:

1. Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §

2255 [Doc. 1] is DENIED and DISMISSED and the Government’s Motion to

Dismiss [Doc. 5] is GRANTED.

2. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of

appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338

(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable

id. at 12-52]. Petitioner’s medical record specifically reflects that, as of September 11, 2020, Petitioner

“denie[d] all COVID symptoms.” [Id. at 17].

4 The Court notes that even if Petitioner’s motion were timely it would be dismissed on the merits, in any

event.

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is

denied on procedural grounds, a petitioner must establish both that the dispositive

procedural ruling is debatable and that the petition states a debatable claim of the

denial of a constitutional right).

Signed: May 12, 2021

Frank D. Whitney é

United States District Judge ages