# Williams v. United States

> District Court, S.D. West Virginia · August 5, 2025

URL: https://www.frixlaw.com/law-library/cases/11133314

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** August 5, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11133314

## How later opinions describe it (automated extraction)

- stating that ignorance of the law, including the existence of AEDPA, is insufficient to warrant equitable tolling

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

TEVIN WILLIAMS, )
)
Movant, ) Civil Action No. 2:25-00204
) Civil Action No. 2:25-00487
v. ) (Criminal Action No. 2:20-00048
) (Criminal Action No. 2:21-00038
UNITED STATES OF AMERCIA )
)
Respondent. )

PROPOSED FINDINGS AND RECOMMENDATION

Pending before the Court is Movant’s Movant Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (Civil Action No. 2:25-00204,
Document No. 54) and Amended Section 2255 Motion (Civil Action No. 2:25-00204, Document
No. 60 and Civil Action No. 2:25-00487, Document No. 17). By Standing Order, this matter was
referred to the undersigned for submission of proposed findings of fact and a recommendation
for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Civil Action No. 2:25-00204, Document
No. 56.)
FACTUAL AND PROCEDURAL BACKGROUND
A Criminal Action No. 2:21-00038:
On April 6, 2021, Movant pled guilty to one count of using and carrying a firearm during
and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) as charged in a
single-count Information. (Criminal Action No. 2:21-00038, Document Nos. 4 - 7.) A
Presentence Investigation Report was prepared. (Id., Document No. 11.) The District Court
determined that Movant had a Base Offense Level of 20, and a Total Offense Level of 23, the
Court having applied the following: (1) A two-level enhancement pursuant to U.S.S.G. §
2K2.1(b)(1)(A) because Movant’s offense involved at least three firearms; (2) A four-level
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because Movant used or possessed a firearm
in connection with another felony offense; and (3) A three-level reduction for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b). (Id., Document Nos. 11 and 15.) On July
19, 2021, the District Court sentenced Movant to the sixty (60) months mandatory minimum to
run consecutively with the sixty (60) months imposed in Criminal Action No. 2:20-00048. (Id.,
Document Nos. 11 and 15.) The District Court further imposed a five-year term of supervised
release and a $200 special assessment. (Id.) Movant did not file an appeal with the Fourth Circuit
Court of Appeals.
B. Criminal Action No. 2:20-00048:
On April 6, 2021, Movant pled guilty to one count of being a felon in possession of
firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) as charged in the
single-count Indictment. (Criminal Action No. 2:20-00048, Document Nos. 42 - 44.) A

Presentence Investigation Report was prepared. (Id., Document No. 48.) The District Court
determined that Movant had a Base Offense Level of 20, and a Total Offense Level of 23, the
Court having applied the following: (1) A two-level enhancement pursuant to U.S.S.G. §
2K2.1(b)(1)(A) because Movant’s offense involved at least three firearms; (2) A four-level
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because Movant used or possessed a firearm
in connection with another felony offense; and (3) A three-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b). (Id., Document Nos. 48 and 52.) On July
19, 2021, the District Court sentenced Movant to a term of 60 months of imprisonment “to run
consecutively with the sixty (60) months mandatory minimum sentence imposed in Criminal
Case No. 2:21-00038 on the single-count information.” (Id., Document Nos. 49 and 50.) The
District Court further imposed a three-year term of supervised release and a $200 special
assessment. (Id.) Movant did not file an appeal with the Fourth Circuit Court of Appeals.
On February 14, 2025, Movant filed a “Motion for Sentence Reduction Under 18 U.S.C.

§ 3582(c)(1)(A) (Compassionate Release).” (Id., Document No. 54.) As grounds for relief,
Movant challenged the validity of his conviction under 18 U.S.C. 922(g) based upon Rehaif v.
United States, 588 U.S. 225, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019) and New York State Rifle
and Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). (Id.)
Movant explains that in Rehaif, the United States Supreme Court held that 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. (Id., Document No. 54, p. 5.)
Thus, Movant claims that his Section 922(g) “conviction is invalid because it was based on a
defective indictment that failed to allege his knowledge of the relevant prohibited state as
required under Rehaif.” (Id., Document No. 54, p. 5.) Citing Bruen, Movant argues that Section

922(g) “is unconstitutional on its face and as applied under the Second Amendment.” (Id.,
Document No. 54-1, p. 1.) Movant, therefore, requests that his sentence be reduced. (Id.)
By Order entered on March 4, 2025, United States District Judge John T. Copenhaver, Jr.
denied Movant’s Motion to the extent Movant was seeking compassionate release. (Id.,
Document No. 55.) To the extent Movant was seeking relief based upon Rehaif and Bruen, Judge
Copenhaver referred the Motion to the undersigned for a determination as to whether Movant
intended to seek relief under 28 U.S.C. § 2255. (Id.) Having examined Movant’s Motion for
Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A), the Court determined Movant’s Motion

3
should be construed as a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody. By Order and Notice entered on March 26, 2025, the
undersigned notified Movant of its intention to re-characterize his Motion for Sentence
Reduction Under 18 U.S.C. § 3582(c)(1)(A) (Document No. 54) as a Section 2255 Motion

pursuant to Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) and
United States v. Emmanuel, 288 F.3d 644 (4th Cir. 2002). (Id., Document No. 57.) The Court
further ordered as follows:
[I]t is hereby ORDERED that Movant should inform the Court in writing by
April 28, 2025, if he does not wish to have his Motion re-characterized as a
motion under Section 2255. Should Movant not file a response to this Order and
Notice, the Court will consider the Motion as a Motion filed under Section 2255.
If Movant agrees that his Motion shall be considered under Section 2255, Movant
may further amend his Section 2255 Motion to the extent permitted by law.

(Id.) Therefore, a Section 2255 action (Civil Action No. 2:25-00204) was opened concerning
Movant’s conviction in Criminal Action No. 2:20-00048.
B. Section 2255 Motion:
On April 7, 2025, Movant filed an Amended Section 2255 Motion and Memorandum in
Support concerning his convictions in Criminal Action Nos. 2:20-00048 and 2:21-00038. (Civil
Action No. 2:25-00204, Document Nos. 60 and 61 and Civil Action No. 2:25-00487, Document
Nos. 17 and 18.) As grounds for relief, Movant asserts the following: (1) Actual innocence;1 (2)
Ineffective assistance of counsel; (3) “Misconduct/vindictiveness;”2 and (4) “Rehaif and Bruen
rulings.”3 (Civil Action No. 2:25-00204, Document No. 60 and Civil Action No. 2:25-00487,

1 Movant’s claims of actual innocence and ineffective assistance of counsel concern his conviction in Criminal
Action No. 2:21-00038.

2 Movant’s claim of “misconduct/vindictiveness” concerns his convictions in Criminal Action Nos. 2:21-00038 and
2:20-00048.

3 Movant’s claims based upon Rehaif and Bruen concern his conviction in Criminal Action No. 2:20-00048.
4
Document No. 17.) Regarding his Rehaif and Bruen claims, Movant states that he “reasserts” the
arguments as set forth in his previous Motion concerning his Section 922(g) conviction
(Criminal Action No. 2:20-00048). (Civil Action No. 2:25-00204, Document No. 61, p. 2 and
Civil Action No. 2:25-00487, Document No. 18, p. 2.) Concerning his actual innocence claim,

Movant argues that he is innocent of his Section 924(c) conviction because there was no
qualifying predicate offense (Criminal Action No. 2:21-00038). (Id.) Specifically, Movant
asserts that the “simple locating of an illegal firearm in petitioner’s possession does not provide
the actual elements of 924(c)(3)’s ‘attempted use of physical force.’” (Id.) Movant contends that
he is ‘actually innocent’ because the Government failed to prove Movant “used or attempted to
use the firearm in the commission of a violent offense.” (Id.) Movant concludes that the
foregoing further “exhibits the cause and prejudice of Strickland with regard to [ineffective
assistance of] counsel.” (Id.) Concerning his claim of “misconduct/vindictiveness,” Movant
contends that “federal prosecutors overstepped their boundaries for a simple firearm possession
that was punishable by the State’s set of laws, codes, judicial system.” (Id., p. 3.) Movant argues

that federal prosecutors encroached into the State’s sovereignty because there was “no
discussions of interstate commerce, large scale drug operations, or RICO indictment.” (Id.)
Movant concludes that “[a] standalone possession of a weapon does not amount to a normal case
for Federal authorities to indict and the second possession was turned into a § 924(c) improperly
with vindictiveness to prosecute for elements that weren’t charged.” (Id.) As relief, Movant
requests that his sentences in Criminal Action Nos. 2:20-00048 and 2:21-00038 be vacated. (Id.,
p. 4.)
ANALYSIS

5
1. Timeliness:
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996
[AEDPA], which established a one-year period of limitation governing the filing of motions for
collateral relief under 28 U.S.C. § 2255. The one-year period runs from the latest of one of four

specified events:
(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making the motion created by
government action in violation of the Constitution or laws of the United
States is removed, if movant was prevented from making a motion by
such government 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 reasonable diligence.

28 U.S.C. § 2255(f).
A. Section 2255(f)(1):
The Court will first consider the timeliness of Movant’s Motions under Section
2255(f)(1). Movant’s Judgment Orders were entered on July 28, 2021 in both Criminal Action
No. 2:20-00048 and Criminal Action No. 2:21-00038, and his sentences became final 14 days
later when he did not file a Notice of Appeal (August 11, 2021). On February 14, 2025,
approximately two years and six months after the one-year period expired, Movant filed his
Motion challenging his Section 922(g) conviction in Criminal Action No. 20-00048. (Criminal
Action No. 2:20-00048, Document No. 54 and Civil Action No. 2:25-00204, Document No. 54.)
On April 7, 2025, approximately two years and eight months after the one-year period expired,
6
Movant filed his Amended Section 2255 Motion and Memorandum in Support in Civil Action
No. 2:25-cv-00204 also challenging his Section 924(c) conviction in Criminal Action No.
2:21-00038.4 (Civil Action No. 2:25-00204, Document Nos. 60 and 61; Criminal Action No.
2:21-00038, Document Nos. 17 and 18; Civil Action No. 2:25-00487, Document Nos. 17 and

18.) Movant’s Motions are clearly untimely under Section 2255(f)(1) concerning his convictions
in Criminal Action No. 2:20-00048 and Criminal Action No. 2:21-00038.
B. Section 2255(f)(3):
Second, the Court will consider the timeliness of Movant’s Motions under Section
2255(f)(3).5 When a movant wishes to make a claim based on a decision by the United States
Supreme Court after his conviction becomes final, the movant must show that the Supreme Court
decision announced a new rule and that the new rule is retroactive to cases on collateral review.
See Teague v. Lane, 489 U.S. 288, 308, 109 S.Ct. 1060, 1071, 103 L.Ed.2d 334 (1989). Under
Section 2255(f)(3), the Fourth Circuit has ruled that a movant’s Section 2255 Motion is timely if
“(1) he relies on a right recognized by the Supreme Court after his judgment became final, (2) he

files a motion within one year from the date on which the right asserted was initially recognized
by the Supreme Court, . . . and (3) the Supreme Court or this court [of appeals] has made the
right retroactively applicable.” United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017). For the
purpose of Section 2255(f)(3), courts are not authorized “to read between the lines of a prior
opinion to discern whether that opinion, by implication, made a new rule retroactively applicable
on collateral review.” United States v. Mathur, 685 F.3d 396, 401 (4th Cir. 2012). “The only way

4 The Clerk’s Office is DIRECTED to file nunc pro tunc to April 7, 2025, a copy of Plaintiff’s Amended Section
2255 Motion and Memorandum in Support in Criminal Action No. 2:21-00038, and open a corresponding Section
2255 action as to the same nunc pro tunc date.

5 Movant presents no arguments supporting a claim that his Motion is timely pursuant to Section 2255(f)(2).

7
to make a new rule retroactive ‘is through a holding’” by the United States Supreme Court or the
Fourth Circuit. Mathur, 685 F.3d at 401(citation omitted); also see Brown, 868 F.3d at
301(“Although this court can render a right retroactively applicable, only the Supreme Court can
recognize a new right under § 2255(f)(3).”)

Liberally construing Movant’s Section 2255 Motion, Movant appears to argue that
Section 2255(f)(3) applies because he is entitled to relief based on a new rule of constitutional
law, previously unavailable, made retroactive. Specifically, Movant relies upon the United States
Supreme Court’s decision in Rehaif and Bruen. The undersigned will consider his case in turn.
(i) Rehaif v. United States, 588 U.S. 225, 139 S.Ct. 2191, 204 L.Ed.2d 594
(2019):

As grounds for habeas relief, Movant first challenges the validity of his Section 922(g)
conviction in Criminal Action No. 2:20-00048 based upon Rehaif. The Supreme Court decided
Rehaif on June 21, 2019, well prior to Movant’s indictment (March 3, 2020) and conviction
becoming final (August 11, 2021) in Criminal Action No. 2:20-00048. To the extent Movant
relies upon Rehaif, Section 2255(f)(3) is inapplicable because Movant does not rely “on a right
recognized by the Supreme Court after his judgment became final.”6
(ii) New York State Rifle and Pistol Association, Inc. v. Bruen, 597 U.S. 1,
142 S.Ct. 2111, 213 L.Ed.2d 387 (2022):

As grounds for habeas relief, Movant next challenges the validity of his Section 922(g)
conviction in Criminal Action No. 2:20-00048 based upon Bruen. The Supreme Court decided

6 Briefly considering the merits, the undersigned’s that Movant’s challenge to his conviction based upon Rehaif is
without merit. In Rehaif, the Supreme Court held that 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. The single-count Indictment clearly charged that Movant possessed two firearms, and at the time Movant
possessed the firearms, Movant “knew he had been convicted of a crime which was punishable by imprisonment for
a term exceeding one year. (Criminal Action No. 2:20-00048, Document No. 3.) Movant pled guilty to the
single-count Indictment and stipulated to the fact that he knew he was a convicted felon at the time he possessed the
firearms. (Id., Document No. 44.)
8
Bruen on June 23, 2022, less than a year after Movant’s conviction became final (August 11,
2021) in Criminal Action No. 2:20-00048. The undersigned, however, finds that Movant did not
file his above Section 2255 Motion within one year of Bruen. Movant filed his Section 2255
Motion approximately two years and 8 months (February 14, 2025) after Bruen was decided

(June 23, 2022). Furthermore, neither the United States Supreme Court nor the Fourth Circuit
has held that Bruen applies retroactively to cases on collateral review. See In re Bruce Murray,
2023 U.S. App. LEXIS 10241, * 3 (11th Cir. April 26, 2023)(citations omitted)(“Murray’s
reliance on Bruen as a new rule of constitutional law under § 2255(h)(2) is misplaced, as he ‘has
not made a prima facie showing that [Bruen] has been made retroactively applicable by the
Supreme Court to cases on collateral review.”); Blount v. United States, 2024 WL 3643758, * 2
(W.D.N.C. Aug. 1, 2024)(“The Supreme Court in Bruen, however, did not hold that § 922(g)(1)
is unconstitutional nor has such right been made retroactively applicable.”); United States v.
Faulkner, 2023 WL 8655267, * 4 (W.D.Va. Dec. 14, 2023)(finding that “Bruen did not trigger a
new one-year period in which [petitioner] could bring suit under § 2255(f)(3), and his petition is

time-barred”); Jones v. United States, 2023 WL 8602805, * 3 (D.Md. Dec. 12, 2023)(“The
Supreme Court . . . has not held that § 922(g)(1) is unconstitutional, much less held that such a
ruling is retroactively applicable to cases on collateral review.”); Williams v. United States, 2023
WL 11932423, * 4 (N.D.W.Va. June 15, 2023)(“Because Bruen did not announce a new
constitutional right made retroactively applicable to Petitioner’s case on collateral review,
Petitioner cannot use the date of that decision as the beginning of a new limitations period under
§ 2255(f)(3).”); Salley v. United States, 2023 WL 3568618, at * 1 – 3 (M.D.Fla. May 18,
2023)(dismissing Section 2255 motion as time-barred where petitioner relied on Bruen in an

9
attempt to trigger Section 2255(f)(3)); Barragan-Gutierrez v. United States, 668 F.Supp.3d 1231
(D.Wy. April 7, 2023)(“There is no indication that the Supreme Court in Bruen recognized any
new Second Amendment right in the context of criminality” and “Bruen does not trigger a new
one-year limitations period under [Section] 2255(f)(3)”.); Battles v. United States, 2023 WL

346002, at * 1 (E.D.Mo. Jan. 20, 2023)(holding that Section 2255 motion was time-barred
because Bruen “did not announce a new rule retroactively available on collateral review”).
Movant, therefore, cannot establish that his Section 2255 Motion is timely under Section
2255(f)(3). Accordingly, the undersigned respectfully recommends that the District Court find
that Movant’s Section 2255 Motion is untimely.7
C. Section 2255(f)(4):
Finally, the undersigned will consider 2255(f)(4). To the extent Movant argues that
Section 2255(f)(4) applies because Rehaif and Bruen constitutes a new “fact” supporting the
claim, the undersigned disagrees. The Fourth Circuit has addressed this issue. In Whiteside v.
United States, 775 F.3d 180 (4th Cir. 2014), the Fourth Circuit issued its en banc decision

wherein it determined that the Court’s decision in United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) decision did not qualify as a new fact for purposes of Section 2255(f)(4). Id. at 184.
The Fourth Circuit explained “[d]ecisions that change the legal significance of certain facts
without modifying them do not qualify under (f)(4).” Id. The Fourth Circuit further noted that
“[i]f changes in law are cognizable under (f)(4), then (f)(3) becomes superfluous because any
claim brought under (f)(3) could also be brought under (f)(4).” Id. Based on the foregoing, the

7 Even considering the underlying merits, the undersigned notes that Courts have consistently rejected Bruen
challenges to the constitutionality of Section 922(g)(1). United States v. Bever, 669 F.Supp.3d 578, 583 (S.D.W.Va.
April 18, 2023)(J. Faber)(stating that “[a]s of today’s date, ‘over 100 district courts have held that federal law
prohibiting felons from possessing firearms remain valid even after Bruen.”); also see United States v. Ray, 2023
WL 4378152, * 4 (S.D.W.Va. July 6, 2023)(J. Chambers)(rejecting defendant’s as-applied and facially
unconstitutional arguments based on Bruen).
10
undersigned finds that Section 2255(f)(4) is inapplicable. Accordingly, the undersigned finds that
Movant’s Rehaif and Bruen claims challenging his Section 922(g) conviction is untimely.
D. Actual Innocence:
Since Movant appears to be asserting an actual innocence claim, the undersigned

construes Movant’s Motion as relying upon McQuiggin. In McQuiggin, the United States
Supreme Court held that in extraordinary circumstances, a movant that demonstrates actual
innocence of his crime of conviction may proceed with a habeas petition that otherwise would
have been statutorily time-barred under AEDPA. McQuiggin v. Perkins, 569 U.S. 383, 392, 133
S.Ct. 1924, 185 L.Ed.2d 1019 (2013). Although a claim of actual innocence may overcome
Section 2255(f)’s statute of limitations, the Supreme Court cautioned that “tenable
actual-innocence gateway pleas are rare.” Id., 569 U.S. at 386, 133 S.Ct. at 1928. “[A] petitioner
does not meet the threshold requirement unless he persuades the district court, in light of new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.” Id.(quoting Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). To

succeed in asserting a credible actual innocence claim, Movant “must offer reliable new evidence
– whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence – that was not presented at trial and in light of which it becomes ‘more likely
than not that no reasonable juror would have convicted him.” Hill v. United States, 2019 WL
3425049, * 5 (S.D.W.Va. May 21, 2019), report and recommendation adopted, 2019 WL
2745852, appeal dismissed, 785 Fed.Appx. 151 (4th Cir. 2019).
In the instant case, Movant wholly fails to allege new evidence establishes his actual
innocence. Movant merely argues that he now believes that his underlying conduct was

11
insufficient to establish his Section 924(c) conviction. The fact that Movant just now has
“discovered” the foregoing as a theory to challenge his conviction in not new evidence. The
foregoing information was known to Movant prior to his plea of guilty and sentencing. See Hill,
2019 WL 3425049, at * 6(finding that “the affidavit is certainly not new evidence as Hill admits

that it was available at the time of the plea); Brown v. United States, 2018 WL 3241344, * 3
(D.Md. July 3, 2018)(finding that the affidavit that allegedly showed petitioner’s actual
innocence was not new evidence because it contained information that the petitioner knew at the
time of his guilty plea); Goldman v. Keller, 2012 WL 2904577, * 3 (M.D.N.C. July 16,
2012)(finding no new evidence where the “facts underlying petitioner’s defense were in
existence and would have been known to petitioner at the time the pled guilty”); McKissick v.
Warden Evans Correctional Institution, 2013 WL 4585613, * 9 - 10 (D.S.C. Aug. 28,
2013)(finding that affidavit concerning petitioner’s whereabouts at the time of the offense were
not newly discovered evidence because petitioner knew “all long” where he was at the time of
the crime); Sawyer v. United States, 2011 WL 127144, * 5 (E.D.Va. Jan. 13, 2011)(recognizing

that petitioner could not establish extraordinary circumstances where the “new evidence” or
“facts” could have been easily discoverable through the use of public sources). The alleged facts
or evidence now relied upon by Movant to challenge his conviction were facts in existence and
available to Movant as defense prior to the entry of his guilty plea. Furthermore, Movant does
not challenge the validity of his Plea Agreement and the Plea Agreement contained a
“Stipulation of Facts” wherein Movant acknowledged that he knowingly used and carried a
firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).
(Criminal Action No. 2:21-00038, Document No. 7.) Specifically, the “Stipulation of Facts”

12
stated, in pertinent part, as follows:
On June 5, 2019, I was driving on Rt. 60 in Belle, Kanawha County, West
Virginia. I was pulled over and removed from the car by law enforcement
officers. Officers used a K-9 unit and the dog alerted to the presence of drugs in
the car. During a search of my car, officers located a Ruger 9mm pistol,
ammunition, and a small black safe. Officers also located $2,293 in U.S. currency,
over 100 empty plastic baggies, and approximately 93 grams of
methamphetamine which I possessed with intent to distribute. I knowingly carried
the gun to protect both my drugs and the proceeds of my drug dealing.

(Id., p. 12.) Accordingly, the undersigned finds that Movant cannot meet threshold requirements
of McQuiggin and Movant’s Section 2255 Motion is untimely.
2. Equitable Tolling:
The one-year period of limitation is procedural, not jurisdictional, and therefore may be
equitably tolled. United States v. Prescott, 221 F.3d 686, 688 (4th Cir. 2000)(“§ 2255’s limitation
period is subject to equitable modifications such as tolling.”). The Fourth Circuit, however, has
held that equitable tolling “must be reserved for those 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.” Rouse v. Lee, 339 F.3d 238,
246 (4th Cir. 2003); see also Harris v. Hutchinson, 209 F.3d 325, 329 - 30 (4th Cir.
2000)(equitable tolling should apply only where the petitioner is prevented from asserting his
claim by wrongful conduct of the respondent or where extraordinary circumstances beyond the
petitioner’s control make it impossible to file the claim on time). Specially, the Fourth Circuit
stated as follows in Harris, supra, at 330:
‘As a discretionary doctrine that turns on the facts and circumstances of a
particular case, equitable tolling does not lend itself to bright-line rules.’ Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999). The doctrine has been applied in ‘two
generally distinct situations. In the first, the plaintiffs were prevented from
asserting their claims by some kind of wrongful conduct on the part of the
defendant. In the second, extraordinary circumstances beyond plaintiffs’ control
13
made it impossible to file the claims on time.’ Alvarez-Machain v. United States,
107 F.3d 696, 700 (9th Cir. 1996) (citation omitted). But any invocation of equity
to relieve the strict application of a statute of limitations must be guarded and
infrequent, lest circumstances of individualized hardship supplant the rules of
clearly drafted statutes. To apply equity generously would loose the rule of law to
whims about the adequacy of excuses, divergent responses to claims of hardship,
and subjective notions of fair accommodation. We believe, therefore, that any
resort to equity must be reserved for those 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.

Ignorance of the law is not a valid basis for equitable tolling. Marsh v. Soares, 223 F.3d 1217,
1220 (10th Cir. 2000)(stating that ignorance of the law, including the existence of AEDPA, is
insufficient to warrant equitable tolling); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.
1998)(equitable tolling not justified by the fact that the prisoner did not know about AEDPA
time limitation). Further, alleged mistakes by counsel generally does not serve as grounds of
equitable tolling. Rouse, 339 F.3d at 249; also see Merritt v. Blaine, 326 F.3d 157, 169 (3rd Cir.
2003)(“attorney error, miscalculation, inadequate research, or other mistakes have not been
found to rise to the ‘extraordinary’ circumstances required for equitable tolling”)(internal
quotation marks omitted)); Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002)(“Ineffective
assistance of counsel generally does not warrant equitable tolling.”); Harris v. Hutchinson, 209
F.3d 325, 330-31 (4th Cir. 2000)(“[W]hile we agree that the mistake by Harris’ counsel appears
to have been innocent, we cannot say that the lawyer’s mistake in interpreting a statutory
provision constitutes that ‘extraordinary circumstance’ external to Harris that would justify
equitable tolling.”). Federal courts invoke the doctrine of equitable tolling “only sparingly” and
will not toll a statute of limitations because of “what is at best a garden variety claim of
excusable neglect” on the part of the defendant.” Irwin v. Department of Veterans Affairs, 498
U.S. 89, 96, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990). To receive the benefit of equitable
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tolling, a Section 2255 movant must demonstrate that circumstances beyond his control or
government misconduct contributed to his inability to file his Section 2255 motion on time.
Movant, however, fails to indicate any factor beyond his control that prevented him from
presenting his claim in a timely manner. Based upon a thorough review of the record, the

undersigned finds no circumstances justifying equitable tolling in this matter. Therefore, Movant
is hereby notified in accordance with the Fourth Circuit’s decision in Hill v. Braxton, 277 F.3d
701 (4th Cir. 2002), that the undersigned recommends that his Section 2255 action be dismissed
as untimely unless Movant can demonstrate that the Motion was filed within the proper time
period or circumstances exist which would permit equitable tolling of the limitation period.
PROPOSAL AND RECOMMENDATION
Accordingly, the undersigned respectfully proposes that the Court confirm and accept the
foregoing findings and RECOMMENDS that the District Court DENY Movant’s Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
(Civil Action No. 2:25-00204, Document No. 54) and Amended Section 2255 Motion (Civil

Action No. 2:25-00204, Document No. 60 and Civil Action No. 2:25-00487, Document No. 17),
and REMOVE this matter from the Court’s docket.
Movant is notified that this Proposed Findings and Recommendation is hereby FILED,
and a copy will be submitted to the Honorable United States District Judge John T. Copenhaver,
Jr. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), Rule 8(b) of
the Rules Governing Proceedings in the United States District Courts Under Section 2255 of
Title 28, United States Code, and Rule 45(c) of the Federal Rules of Criminal Procedure, Movant
shall have seventeen days (fourteen days, filing of objections and three days, mailing/service)

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from the date of filing of these Findings and Recommendation within which to file with the
Clerk of this Court, written objections, identifying the portions of the Findings and
Recommendation to which objection is made, and the basis of such objection. Extension of this
time period may be granted for good cause shown.
Failure to file written objections as set forth above shall constitute a waiver of de novo
review by the District Court and a waiver of appellate review by the Circuit Court of Appeals.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 106 S. Ct.
466, 88 L. Ed. 2d 435 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208, 104 S. Ct. 2395, 81 L. Ed. 2d
352 (1984). Copies of such objections shall be served on opposing parties, District Judge
Copenhaver, and this Magistrate Judge.
The Clerk is requested to send a copy of this Proposed Findings and Recommendation to
Movant, who is acting pro se, and counsel of record.
Date: August 5, 2025. Hosts
ha date
SNe) 3) Omariatoubom
aN ys United States Magistrate Judge
Lsreier of SS

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11133314. Public record. Not legal advice.