Petition for Writ of Certiorari — Eric C. Sutherland, Petitioner v. United States

Case 3:18-cr-00136-DJH Document 107 Filed 12/21/21 Page 1 of 7 PagelD #: 559

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

Movant/Defendant,

ERIC C. SUTHERLAND,

Criminal Action No. 3:18-cr-136-DJH

v.

Respondent/Plaintiff.

UNITED STATES OF AMERICA,

if

*

*

*

*

MEMORANDUM

Movant Eric C. Sutherland filed a pro se motion and amended motion to vacate, set aside,

or correct his sentence pursuant to 28 U.S.C. § 2255 (Docket Nos. 97 and 102). The Court

reviewed the amended motion1 under Rule 4 of the Rules Governing Section 2255 Proceedings

for the United States District Courts. Upon review, the Court directed Sutherland to show cause

why his amended motion should not be dismissed as barred by the applicable one-year statute of

limitations. Sutherland filed a response (DN 105) to the Court’s Show Cause Order. For the

reasons set forth below, the Court will deny the amended motion as untimely.

I.

After entering a guilty plea, Sutherland was convicted on November 13, 2019, on one

count of coercion or enticement of a minor and sentenced to 120 months’ incarceration.

Sutherland did not file a direct appeal of his conviction. He filed his original § 2255 motion on

June 29, 2021.2

1 By prior Order (DN 99), the Court gave Sutherland an opportunity to file an amended § 2255 motion and

instructed that the amended motion would supersede the original motion.

2 See Miller v. Collins, 305 F.3d 491,497-98 (6th Cir. 2002) (under the mailbox rule, the motion is deemed filed

when presented to prison officials for mailing) (citing Houston v. Lack, 487 U.S. 266 (1988)).

j

Case 3:18-cr-00136-DJH Document 107 Filed 12/21/21 Page 2 of 7 PagelD #: 560

II.

Section 2255 provides for a one-year limitations period, which 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, 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.

See § 2255(f).

When a § 2255 movant does not pursue a direct appeal to the court of appeals, his

conviction becomes final oh the date on which the time for filing such appeal expires.

See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004). Judgment was

entered in this case on November 13, 2019 (DN 57). The judgment became final on

November 27, 2019, upon the expiration of the fourteen-day period for filing a notice of appeal.

See Fed. R. App. P. 4(b)(1)(A). Sutherland had one year, or until November 27, 2020, in which

to timely file a motion under § 2255. Accordingly, Sutherland’s original § 2255 motion, filed on

June 29, 2021, was filed approximately seven months after the statute of limitations expired.

Under § 2255(f), therefore, Sutherland’s motion is time-barred.

However, because § 2255’s one-year statute of limitations is not jurisdictional, it is

subject to equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001).

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Case 3:18-cr-00136-DJH Document 107 Filed 12/21/21 Page 3 of 7 PagelD #: 561

‘“Typically, equitable tolling applies only when a litigant’s failure to meet a legally-mandated

deadline unavoidably arose from circumstances beyond that litigant’s control.’” Jurado v. Burt,

337 F.3d 638, 642 (6th Cir. 2003) (quoting Graham-Humphreys v. Memphis Brooks Museum of

Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000)). A movant “identified to equitable tolling^mly

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. 631, '

649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “Absent compelling

equitable considerations, a court should not extend limitations by even a single day.”

Graham-Humphreys, 209 F.3d at 561. “The [movant] bears the burden of demonstrating that he

is entitled to equitable tolling.” McClendon v. Sherman, 329 F.3d 490, 494-95 (6th Cir. 2003)

(citing Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002)).

The statute of limitations under § 2255 may be equitably tolled when the movant makes a

Ses/fe^u

w credible claim of actual innocence based on new reliable evidence. Schlup v. Delo, 513 U.S.

298, 317 (1995); see also Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005). Actual

HC&C1

innocence means factual innocence, not mere legal insufficiency or legal innocence. Bousley v.

United States, 523 U.S. 614, 623 (1998); Connolly v. Howes, 304 F. App’x 412, 417 (6th Cir.

2008); Souter v. Jones, 395 F.3d at 590. To make out a credible claim of actual innocence,

Sutherland is required to support his allegations of federal constitutional error with “new reliable

evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. at 324.

Without any new reliable evidence and facts showing actual innocence, even the existence of a

meritorious claim of a federal constitutional violation is not in itself sufficient to establish a

miscarriage of justice that would allow the court to reach the merits of a habeas claim that is

Case 3:18-cr-00136-DJH Document 107 Filed 12/21/21 Page 4 of 7 PagelD #: 562

time-barred by the statute of limitations. Id. at 316; Connolly, 304 F. App’x at 417. “[The]

evidence of innocence [must be] so strong that a court cannot have confidence in the outcome of

the trial unless the court is also satisfied that the trial was free of nonharmless constitutional

error.” Schlup v. Delo, 513 U.S. at 316. A “petitioner must show that it is more likely than not

that no reasonable juror would have convicted him in the light of the new evidence.” Id. at 327.

This exacting standard permits review only in the “extraordinary case,” buit it “does not require

absolute certainty about the petitioner’s guilt or innocence.” House v. Bell, 541 U.S. 518, 538

(2006) (citing Schlup v. Delo, 513 U.S. at 327).

In his response to the Court’s Show Cause Order, Sutherland argues that the statute of

limitations “is not applicable because my § 2255 is based on a credible claim of actual innocence

that is backed by newly presented legal facts and case law.” Sutherland asserts, “It is not just my

opinion that reasonable doubts exist, but rather the opinion of several parents who have minors

who are at the age of consent, and they believe that no reasonable juror would have found me

guilty of coercion.” He points to the Modem Federal Jury Instructions, which he believes

support his claims, and “Brady evidence from the Facebook chat logs, which were never

presented at trial” to support his claim of actual innocence. He also argues that the victim was a

“legally consenting adult under Kentucky law”; that the state dismissed thirteen counts because

there was no violation of state law; that the victim initiated communication with him and that all

of the communications were voluntary; and that there was not a substantial connection to

interstate commerce to support federal charges. He also states that this Court “has allowed for

numerous violations of due process, countless errors, violations of several rules of procedure,

and numerous violation of the United States Constitution which have resulted in severe prejudice

i

I

Case 3:18-cr-00136-DJH Document 107 Filed 12/21/21 Page 5 of 7 PagelD #: 563

and a gross miscarriage of justice.” He points to errors he believes the Court made during the

plea hearing and in his indictment.

Sutherland also states, “The Court kept the intricate inner workings of the third element a

secret. The Government failed to turn over Brady material during pre-trial that would have

greatly supported my case, therefore blatantly violating my Sixth Amendment rights, my due

process rights, and countless other protections” under the Constitution. He further maintains that

his counsel abandoned him and “failed to provide me with the necessary modem federal jury

instructions for § 2422(b), and failed to inform me that the charge requires an underlying state

offense in order to convict.” Sutherland asserts, “These numerous reasonable doubts and

undisclosed Facebook chat logs would lead to only one conclusion. No reasonable juror would

have found me guil

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Sutherland’s arguments concerning the Modem Federal Jury Instructions, the victim’s

age, the dismissal of the state charges, voluntariness of the communications, a connection with

interstate commerce, and(broadfcIajms of constitutional violations do not present new evidence,

but bear only on the legal sufficiency of the case. Therefore, these arguments fail to show that

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Sutherland is entitled to equitable tolling based on actual innocence.

With regard to Sutherland’s argument that the government failed to turn over “Brady

evidence from Facebook chat logs,” he fails to produce this purported evidence, to state when or

how he discovered it to establish that the evidence is in fact new, or to provide any facts to show

that it is in fact reliable. See McQuiggin y. Perkins, 569 U.S. 383, 399 (2013) (“Unexplained

delay in presenting new evidence bears on the determination whether the petitioner has made the

requisite showing.”). A movant’s “vague assertion of innocence, unsupported by actual evidence

and resting only on [his] own self-serving statement, does not make it more likely than not that

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Case 3:18-cr-00136-DJH Document 107 Filed 12/21/21 Page 6 of 7 PagelD #: 564

no reasonable juror would have found [the movant] guilty beyond a reasonable doubt.”

Castellon v. Calif, No. SACV 15-00221-PA (GJS), 2015 U.S. Dist. LEXIS 115683, at 25

(C.D. Cal. Jul. 20, 2015) (citing Schlup v. Delo, 513 U.S. at 327; McQuiggin v. Perkins, 569 U.S.

at 399), report and recommendation adopted, 2015 U.S. Dist. LEXIS 115685 (C.D. Cal. Aug.

28, 2015); see also Weeks v. Bowersox, 119 F.3d 1342, 1352 (8th Cir. 1997) (finding no actual

innocence where the petitioner alleged that a “staggering amount of evidence” existed but “failed

to produce one iota of substance”). Sutherland’s vague reference to the Facebook chat logs,

without presenting them or even describing what is contained in them, is insufficient to establish

actual innocence. See Larson v. Soto, 742 F-3d 1083, 1096 (9th Cir. 2013) (speculative evidence

insufficient to show actual innocence); Eby v. Janecka, 349 F. App’x 247, 249 (10th Cir. 2009)

(conclusory allegations of actual innocence insufficient to excuse untimeliness of petition);

White v. Dir., No. 6:19cv231, 2021 U.S. Dist. LEXIS 50102, at *15 (E.D. Tex. Feb. 5, 2021)

(“[The petitioner’s] claims that the witness recanted to him are not reliable evidence; they are

simply his own conclusory words.”), report and recommendation adopted, 2021 U.S. Dist.

LEXIS 48808 (E.D. Tex. Mar. 16, 2021). Therefore, the Court finds that Sutherland has failed to

demonstrate that he is entitled to equitable tolling.

For these reasons, the Court concludes that the § 2255 motion is untimely. The Court

will dismiss this action by separate Order.

m. CERTIFICATE OF APPEALABILITY

In the event that Sutherland appeals this Court’s decision, he is required to obtain a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b). A district court

must issue or deny a certificate of appealability and can do so even though the movant has yet to

make a request for such a certificate. Castro v. United States, 310 F.3d 900, 903 (6th Cir. 2002).

Case 3:18-cr-00136-DJH Document 107 Filed 12/21/21 Page 7 of 7 PagelD #: 565

When a“distri"ct court denies a motion on procedural grounds without addressing the ’ j

merits of the motion, a certificate of appealability should issue if the movant shows “that jurists

of reason would find it debatable whether the motion states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a

plain procedural bar is present and the district court is correct to invoke it to dispose of the

matter, a reasonable jurist could not conclude either that the court erred in dismissing the motion

or that the movant should be allowed to proceed further. Id. at 484. In such a case, no appeal is

warranted. Id. This Court is satisfied that no jurists of reason could find its (procedural ruling/to

be debatable. Thus, no certificate of appealability is warranted in this case.

Date:

December 21, 2021

\

|2uum£ /IS TO

David J. Hale, Judge

United States District Court

cc:

Movant/Defendant, pro se

United States Attorney

4415.010

7 AppeMbix F

Case 3:18-cr-00136-DJH Document 108 Filed 12/21/21 Page 1 of 1 PagelD #: 566

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

ERIC C. SUTHERLAND,

Movant/Defendant,

v.

Criminal Action No. 3:18-cr-136-DJH

UNITED STATES OF AMERICA,

Respondent/Plaintiff.

£

$ $ $ $

ORDER

For the reasons set forth in the Memorandum entered this date and being otherwise

sufficiently advised, IT IS HEREBY ORDERED that Movant Eric C. Sutherland’s motion

and amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255

(Docket Nos. 97 and 102) are DENIED and that the action is DISMISSED.

IT IS HEREBY FURTHER ORDERED that a certificate of appealability is DENIED.

28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

This Court certifies that an appeal would be frivolous and therefore not taken in good

faith. See 28 U.S.C. § 1915(a)(3).

Sutherland shall direct any further request for a certificate of appealability or appeal

in forma pauperis to the Sixth Circuit Court of Appeals pursuant to the requirements of Fed. R.

App. P. 22(b) and 24, respectively.

There being no just reason for delay in its entry, this is a final and appealable Order.

Date: '•December 21, 2021

cc:

Movant/Defendant, pro se

United States Attorney

David J. Hale, Judge

United States District Court

4415.010

<k

Page 1 of 4

'22-5168

General Docket

United States Court of Appeals for the Sixth Circuit

Court of Appeals Docket #: 22-5168

Nature of Suit: 2510 Prisoner: Vacate Sentence

Eric Sutherland v. USA

Appeal From: Western District of Kentucky at Louisville

Fee Status: fee paid

cDocketed: 03/03/2022 1

Case Type Information:

1) Prisoner

2) Federal

3) Motion to Vacate

Originating Court Information:

District: 0644-3 : 3:21-cv-00442

Trial Judge: David J. Hale, District Judge

Date Filed: 07/06/2021

Date Order/Judgment:

Date NOA Filed:

12/21/2021

02/22/2022

District: 0644-3 : 3:18-cr-00136-l

Trial Judge: David J. Hale, District Judge

Date Filed: 09/06/2018

Date NOA Filed:

Date Order/Judgment:

12/21/2021

02/22/2022

Lead: 3:21-cv-00442

Prior Cases:

None

Current Cases:

None

ERIC C. SUTHERLAND (Federal Prisoner: #19495- Eric C. Sutherland

033)

[NTC Pro Se]

Petitioner - Appellant

FMC Lexington

P.O. Box 14500

Lexington, KY 40512

v.

UNITED STATES OF AMERICA

Respondent - Appellee

Monica Wheatley, Assistant U.S. Attorney

Direct: 502-582-5938

[COR LD NTC Government]

Office of the U.S. Attorney

Western District of Kentucky

Firm: 502-582-5911

717 W. Broadway

Louisville, KY 40202

Jo E. Lawless, Assistant U.S. Attorney

Direct: 502-625-7065

[NTC Government]

Office of the U.S. Attorney

Appeal* |4

https://ca6-ecf.sso.dcn/cmecf/servlet/DktRpt?caseNum=22-5168... 5/25/2022

Case 3:18-cr-00136-DJH Document 123 Filed 04/15/22 Page 1 of 1 PagelD #: 638

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

Plaintiff,

UNITED STATES OF AMERICA,

v.

Criminal Action No. 3:18-cr-136-DJH

ERIC C. SUTHERLAND,

Defendant.

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ORDER

This matter is before the Court on two motions filed by Defendant Eric C. Sutherland.

^utHerjand^filed a motion to dismiss the indictment for fai lure to stateari^offense^Docket

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No. 112) and a motion “in arrest of judgment” in which Sutherland argues that his indictment is

“insufficient to sustain a judgment” (DN 116). As the Court instructed Sutherland in a prior

Order (DN 106), a district court no longer has jurisdiction over a criminal case after a final

judgment is entered. United States v. Martin, 913 F.2d 1172, 1174 (6th Cir. 1990). Sutherland

pleaded guilty, and a final judgment of conviction was entered on November 13, 2019 (DN 57).

Thus, this Court does not have jurisdiction to hear the instant motions. Accordingly, it is hereby

ORDERED that the motion to dismiss the indictment and motion “in arrest of judgment”

(DNs 112 and 116) ar^DENIEDTJ

Date: (April is, 2022 j

David J. Hale, Judge

United States District Court

cc:

Defendant, pro se

U.S. Attorney

4415.010

Aweubix T>

Case 3:18-cr-00136-DJH Document 103 Filed 09/28/21 Page 1 of 5 PagelD #: 504

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

ERIC C. SUTHERLAND,

Movant/Defendant,

v.

Civil Action No. 3:18-cr-136-DJH

UNITED STATES OF AMERICA,

Respondent/Plaintiff.

* * * * *

MEMORANDUM AND ORDER

Movant Eric C. Sutherland filed a pro se motion and amended motion to vacate, set aside

or correct his sentence pursuant to 28 U.S.C. § 2255 (Docket Nos. 97 and 102). Sutherland also

filed a motion for extension of time to file his amended § 2255 motion. Upon review, IT IS

ORDERED that the motion for extension of time (DN 101) is GRANTED.

The amended motion1 is now before the Court for preliminary review pursuant to Rule 4

of the Rules Governing Section 2255 Proceedings for the United States District Courts. Because

the motion appears to be barred by the applicable statute of limitations, the Court will direct

Sutherland to show cause why his motion should not be denied as untimely.

L

After entering a guilty plea, Sutherland was convicted on November 13,2019, on one

count of coercion or enticement of a minor and sentenced to 120 months’ incarceration.

Sutherland did not file a direct appeal of his conviction. He filed his original § 2255 motion on

June 29, 2021.2

1 By prior Order (DN 99), the Court gave Sutherland an opportunity to file an amended § 2255 motion

and instructed that the amended motion would supersede the original motion.

See Miller v. Collins, 305 F.3d 491, 497-98 (6th Cir. 2002) (under the mailbox rule, the motion is

deemed filed when presented to prison officials for mailing) (citing Houston v. Lack, 487 U.S. 266

(1988)).

E

Case 3:18-cr-00136-DJH Document 103 Filed 09/28/21 Page 2 of 5 PagelD#: 505

n.

Section 2255 provides for a one-year limitations period, which 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, 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.

See § 2255(f).

When a § 2255 movant does not pursue a direct appeal to the court of appeals, his

conviction becomes final on the date on which the time for filing such appeal expires.

See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004). Judgment was

entered in this case on November 13,2019 (DN 57). The judgment became final on November

27, 2019, upon the expiration of the fourteen-day period for filing a notice of appeal. See Fed. R.

App. P. 4(b)(1)(A). Sutherland had one year, or until November 27,2020, in which to timely file

a motion under § 2255. Accordingly, Sutherland’s original § 2255 motion, filed on June 29,

2021, was filed approximately seven months after the statute of limitations expired. Under

§ 2255(f), therefore, Sutherland’s motion appears to be time-barred and subject to summary

dismissal.

2 Afpenwx E

Case 3:18-cr-00136-DJH Document 103 Filed 09/28/21 Page 3 of 5 PagelD #: 506

However, because § 2255’s one-year statute of limitations is not jurisdictional, it is

subject to equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001).

Sutherland has not alleged facts in his motion which warrant the application of equitable tolling.

‘“Typically, equitable tolling applies only when a litigant’s failure to meet a legally-mandated

deadline unavoidably arose from circumstances beyond that litigant’s control.’” Jurado v. Burt,

337 F.3d 638, 642 (6th Cir. 2003) (quoting Graham-Humphreys v. Memphis Brooks Museum of

Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000)). A movant “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. 631,

649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “Absent compelling

equitable considerations, a court should not extend limitations by even a single day.”

Graham-Humphreys, 209 F.3d at 561. “The [movant] bears the burden of demonstrating that he

is entitled to equitable tolling.” McClendon v. Sherman, 329 F.3d 490, 494-95 (6th Cir. 2003)

(citing Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002)).

In the section of the § 2255 motion form which asks the filer to explain why the motion

should not be barred by the statute of limitations if his judgment of conviction became final more

than one year ago, Sutherland alleges actual innocence.(The statute of limitations under § 2255

I'

may be equitably tolled when the movant makes a credible claim of actual innocence based on

new reliable evidence] Schlup

v. Delo, 513 U.S. 298, 317 (1995); see also Souter v. Jones, 395

F.3d 577, 589-90 (6th Cir. 2005). Actual innocence means factual innocence, not mere legal

insufficiency or legal innocence. Bousleyv. United States, 523 U.S. 614, 623 (1998); Connolly

v. Howes, 304 F. App’x 412, 417 (6th Cir. 2008); Souter, 395 F.3d at 590. To make out a

credible claim of actual innocence, Sutherland is required to support his allegations of federal

3 Appe^oix E

Case 3:18-cr-00136-DJH Document 103 Filed 09/28/21 Page 4 of 5 PagelD #: 507

constitutional error with “new reliable evidence-whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.”

Schlup v. Delo, 513 U.S. at 324. Without any new reliable evidence and facts showing actual

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innocence, even the existence of a meritorious claim of a federal constitutional violation is not in

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itself sufficient to establish a miscarriage ofjustice that would allow the court to reach the merits

of a habeas claim that is time-barred by the statute of limitations. Id. at 316; Connolly, 304 F.

App’x at 417.

*****

Sutherland does not argue any new facts or point to any new reliable evidence that was

not presented at trial. Tlieredbre, he fails to establish that he is entitled to equitable tolling on the

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basis of actual innocence.

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Moreover, to the extent Sutherland also makes reference to being denied access to the

law library due to COVID-19 restrictions, a prisoner’s lack of knowledge of the law and limited

access to the prison’s law library or to legal materials do not justify equitable tolling. Hall v.

Warden, Lebanon Corr. Inst., 662 F.3d 745, 750-51 (6th Cir. 2011). Such conditions are typical

for many prisoners and therefore do not constitute extraordinary circumstances. Adams v.

Chillicothe Corr. Inst., No. 2:16-CV-563, 2016 U.S. Dist. LEXIS 111672, at *4 (S.D. Ohio Aug.

22, 2016). Courts have recognized the “extraordinary circumstance” imposed by impact of

COVID-19. See, e.g., Pickens v. Shoop, No. l:19-CV-558, 2020 U.S. Dist. LEXIS 103703, at *7

(S.D. Ohio June 12, 2020). However, “[cjourts have consistently held that general allegations of

placement in segregation and lack of access to legal materials are not exceptional circumstances

warranting equitable tolling, especially where a petitioner does not sufficiently explain why the

circumstances he describes prevented him from timely filing a habeas petition.” Andrews v.

United States, No. 17-1693, 2017 U.S. App. LEXIS 28295, at *6 (6th Cir. Dec. 12,2017) (citing

4

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Case 3:18-cr-00136-DJH Document 103 Filed 09/28/21 Page 5 of 5 PagelD #: 508

Paulcin v. McDonough, 259 F. App’x 211, 213 (11th Cir. 2007); United States v. Fredette, 191

^

F. App’x 711, 713 (10th Cir. 2006)). Sutherland’s allegations are not sufficient to support

equitable tolling. He does not provide the dates or length of time he was denied access to the law

library or otherwise describe how COVID-19 restrictions prevented him from timely filing his

§ 2255 motion.

However, before dismissing the motion as time-barred, the Court will provide Sutherland

with an opportunity to respond. See Day v. McDonough, 547 U.S. 198, 210 (2006).

HI.

WHEREFORE, IT IS ORDERED that within thirty (30) days from entry of this

Memorandum and Order, Sutherland must SHOW CAUSE why the amended § 2255 motion to

vacate, set aside or correct his sentence should not be dismissed as barred by the applicable

one-year statute of limitations.

Sutherland is WARNED that failure to respond within the time allotted will result

in denial of the amended motion for the reasons set forth herein.

Date:

September 28, 2021

m

&

David J. Hale, Judge

United States District Court

cc:

Movant/Defendant, pro se

United States Attorney

4415.010

5

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Additional material

from this filing is

available in the

Clerk's Office.