UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) UNITED STATES OF AMERICA, ) ) v. ) Criminal Case No. 93-354 (EGS) ) RAYFIELD WILSON, ) ) Defendant. ) )
MEMORANDUM OPINION
Pending before the Court is defendant Rayfield Wilson’s pro
se motion to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255 (“2255 motion” or “motion”). In 1994,
Mr. Wilson was sentenced in the Superior Court of the District
of Columbia (“Superior Court”) for second-degree murder,
voluntary manslaughter, and two other related charges. In 1995,
he pled guilty to a federal drug conspiracy charge, and the
federal district court ordered his federal sentence to run
consecutive to any other sentence being served. Mr. Wilson did
not appeal his federal conviction and sentence. More than twenty
years after his federal judgment of conviction became final,
Mr. Wilson now requests that his federal sentence be ordered to
run concurrently with his Superior Court sentence.
After careful consideration of Mr. Wilson’s motion, the
government’s response, Mr. Wilson’s reply thereto, the entire record herein, and the applicable law, the Court DENIES
Mr. Wilson’s motion.
I. Background
In August 1992, Mr. Wilson was charged in the Superior
Court with two counts of first-degree murder while armed, in
violation of D.C. Code §§ 22–2401, –3202; one count of assault
with intent to kill while armed, in violation of D.C. Code
§§ 22–501, –3202; one count of possession of a firearm during a
crime of violence, in violation of D.C. Code § 22–3204(b); and
one count of carrying a pistol without a license, in violation
of D.C. Code § 22–3204(a). See United States v. Wilson, No. 1992
FEL 012920 (D.C. Super. Ct.); see also Wilson v. United States,
691 A.2d 1157, 1158 (D.C. 1997) (per curiam).
On August 26, 1993, a jury found Mr. Wilson guilty of
second-degree murder while armed, voluntary manslaughter while
armed, possession of a firearm during a crime of violence, and
carrying a pistol without a license. See Wilson, 691 A.2d at
1158; see generally docket for Superior Court No. 1992 FEL
012920. At trial, three eyewitnesses testified that they saw
Mr. Wilson kill two brothers, Anthony and Willie Ellis (“Ellis
brothers”). Wilson, 691 A.2d at 1160. On February 4, 1994,
Judge Curtis E. von Kann of the Superior Court sentenced
Mr. Wilson to consecutive terms of fifteen years to life of
imprisonment for second-degree murder and thirteen years to life
2 for voluntary manslaughter; and concurrent terms of forty to 120
months for carrying a pistol without a license and five to
fifteen years for possession of a firearm during a crime of
violence. Id. at 1158 n.2; see generally docket for Superior
Court No. 1992 FEL 012920. Mr. Wilson filed a timely appeal in
that case, and the District of Columbia Court of Appeals
affirmed his convictions on April 3, 1997. Wilson, 691 A.2d at
1158.
On September 30, 1993, while awaiting sentencing in the
Superior Court case, Mr. Wilson was indicted on two federal drug
conspiracy charges in the United States District Court for the
District of Columbia. See Indictment, ECF No. 1 at 1-2. 1 It was
alleged that Mr. Wilson engaged in the conspiracy on or about
April 9, 1992. See id.; see also Superseding Information, ECF
No. 12 at 1. On February 27, 1995, Mr. Wilson pled guilty to one
count of conspiracy to distribute cocaine base, in violation of
18 U.S.C. § 371. See Plea Agreement, ECF No. 14 at 1. The charge
carried a “penalty of not more than five years and a fine of not
more than $10,000, or both, and a special assessment of $50[.]”
Id.
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 3 On June 28, 1995, Judge Thomas Penfield Jackson 2 sentenced
Mr. Wilson to sixty months of incarceration, to run consecutive
to any other sentence being served, followed by three years of
supervised release and a special assessment of $50. See June 28,
1995 Docket Entry. The judgment of conviction was entered on
June 29, 1995. See Judgment and Commitment, ECF No. 18.
Mr. Wilson did not appeal his federal conviction and sentence to
the United States Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”). See generally docket for Crim. Action
No. 93-354.
On November 20, 2017, Mr. Wilson filed the instant Section
2255 motion and his Motion for Leave to File and Memorandum of
Facts and Law in Support of His Petition Pursuant to 28 U.S.C.
§ 2255 (“Def.’s Memo. of Law & Facts”). See Def.’s Mot. to
Vacate, ECF No. 20 at 12; see also Def.’s Memo. of Law & Facts,
ECF No. 19 at 19. 3 At the time he filed his motion, Mr. Wilson
2 This case was randomly reassigned to Judge Emmet G. Sullivan due to Judge Jackson’s retirement in 2004. 3 The Court treats Mr. Wilson’s pro se motion as if it was filed
on November 20, 2017, which was the date he signed it. See United States v. Peterson, 916 F. Supp. 2d 102, 104 (D.D.C. 2013) (“[A]bsent evidence to the contrary, the Court will assume that [the petitioner] delivered his motion to prison authorities on the date he signed it.”). On November 27, 2017, the Clerk’s Office received his motion and memorandum. The Court granted him leave to file both documents on December 11, 2017, and the Clerk’s Office filed them on the Court’s electronic docket on the same date.
4 was a federal prisoner at the United States Penitentiary
McCreary, which is located in Pine Knot, Kentucky and operated
by the Federal Bureau of Prisons (“BOP”). See Def.’s Mot. to
Vacate, ECF No. 20 at 1 (“Place of Confinement: USP McCreary”);
see also Def.’s Memo. of Law & Facts, ECF No. 19 at 19.
On March 2, 2018, the Court ordered the government to
respond to Mr. Wilson’s motion, and the government filed its
opposition on April 19, 2018. See Gov’t’s Opp’n, ECF No. 23. On
April 25, 2018, Mr. Wilson filed a pro se motion for an
extension of time to respond to the government’s opposition and
his pro se reply. See Def.’s Mot. for Extension of Time,
ECF No. 24 at 1-2 (Mr. Wilson signed this motion on April 25,
2018); see also Def.’s Reply, ECF No. 24-1 (styled “Response to
the United States Motion in Opposition”). On May 30, 2018, the
Court granted Mr. Wilson leave to file a supplemental response
by no later than August 1, 2018 and informed him that if he did
not file a supplemental response, the Court would treat his
response at ECF No. 24-1 as his only response to the
government’s opposition. He did not file a supplemental
response. See generally docket for Crim. Action No. 93-354.
Mr. Wilson’s motion is now ripe and ready for the Court’s
adjudication.
5 II. Analysis
Under 28 U.S.C. § 2255, a “prisoner in custody under
sentence of a court” may “move the court which imposed the
sentence to vacate, set aside, or correct the sentence” if the
prisoner claims “that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Mr. Wilson argues that his due process rights were violated
when the federal district court “erroneously” ordered his
federal sentence to run consecutive to his Superior Court
sentence. See Def.’s Mot. to Vacate, ECF No. 20 at 4. He urges
this Court to follow the Supreme Court’s ruling in Setser v.
United States, 566 U.S. 231 (2012) and Amendments 776 and 787 to
the United States Sentencing Guidelines, promulgated after
Setser, to correct his federal consecutive sentence and impose a
concurrent sentence. See Def.’s Memo. of Law & Facts, ECF No. 19
at 6-7. Mr. Wilson acknowledges a federal sentencing judge’s
authority to decide whether a federal sentence runs
consecutively to or concurrently with other sentences that have
already been imposed in state proceedings. See id. at 8-10
(citing 18 U.S.C. § 3584(a); Setser, 566 U.S. at 236).
Nevertheless, Mr. Wilson argues that his “distinct crimes” in
6 the federal and Superior Court cases were “relevant conduct to
each other” under the United States Sentencing Guidelines; thus,
he argues that his federal sentence should run concurrently with
his Superior Court sentence. See id. at 3, 19.
As an initial matter, the government argues that
Mr. Wilson’s motion is time-barred because he filed it outside
of the one-year grace period that Congress imposed on Section
2255 motions with the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). See Gov’t’s
Opp’n, ECF No. 23 at 3-4 (citing Mayle v. Felix, 545 U.S. 644,
654 (2005)). The government contends that Amendments 776 and
787, incorporated into U.S.S.G. § 5G1.3, generally provide that
a criminal defendant “subject to an undischarged term of
imprisonment or an anticipated state term of imprisonment shall
be sentenced to concurrent terms of imprisonment if the two
offenses involve ‘relevant conduct.’” Id. at 6 n.3. According to
the government, these amendments do not apply to Mr. Wilson’s
federal conviction because both amendments do not apply
retroactively. Id. The government further maintains that
Mr. Wilson’s federal and Superior Court offenses were not
related or “relevant conduct” under the Sentencing Guidelines.
See id. at 6-7. The government points out that Mr. Wilson sold
cocaine to a confidential informant and undercover police
officer on April 9, 1992 in the federal drug conspiracy case,
7 and that he was convicted of killing the Ellis brothers on
December 12, 1992 in the Superior Court case, conduct which was
not included in his federal drug conspiracy case. See id. at 7.
The government also argues that Mr. Wilson’s additional
arguments lack merit for two main reasons. First, his challenge
to the federal sentence is not cognizable under Section 2255
because, inter alia, his federal sentence did not exceed the
statutory maximum penalty under 18 U.S.C. § 371. See id. at 4-5.
Second, the Supreme Court in Setser recognized that federal
courts “have discretion to select whether the sentences they
impose will run concurrently or consecutively with respect to
other sentences that they impose, or that have been imposed in
other proceedings, including state proceedings.” Id. at 6
(quoting Setser, 566 U.S. at 236). The government points out
that the relevant language in 18 U.S.C. § 3584 provides that “if
a term of imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the terms may
run concurrently or consecutively[.]” Id. at 5 (quoting 18
U.S.C. § 3584(a)).
Before the Court can reach the merits of Mr. Wilson’s
motion, the Court must first determine whether he is a “prisoner
in custody under sentence of a court” within the meaning of
Section 2255. Next, the Court must consider whether Mr. Wilson’s
motion is timed-barred.
8 A. Mr. Wilson Is “In Custody” for Purposes of 28 U.S.C. § 2255
Mr. Wilson argues that his motion is timely because he has
not yet begun serving his federal sentence; thus, he is “not in
custody.” See Def.’s Mot. to Vacate, ECF No. 20 at 10. The
government does not dispute that Mr. Wilson is not currently
serving his federal sentence, but the government argues that
this fact is “immaterial” because his motion is untimely. See
Gov’t’s Opp’n, ECF No. 23 at 4. The government points out that
Mr. Wilson will begin serving his federal sentence after
completing his Superior Court sentence. See id. at 2. The
government notes that the BOP lodged a detainer against him on
August 1, 2001 based upon his federal conviction, and that the
United States Parole Commission lodged a second detainer against
him on August 29, 2001 for an alleged violation of parole. See
id. at 2, 2 n.1.
“A prisoner is in custody for the purposes of § 2255 when
he is incarcerated in either federal or state prison, provided
that a federal court has sentenced him.” Ospina v. United
States, 386 F.3d 750, 752 (6th Cir. 2004). The Rules Governing
Section 2255 Proceedings cover Section 2255 motions filed in a
federal district court by “a person in custody under a judgment
of a state court” and “subject to future custody under a
judgment of the district court, who seeks a determination that .
9 . . future custody under a judgment of the district court would
violate the Constitution or laws of the United States[.]” Rule
1(b)(1), 28 U.S.C. following § 2255.
It is undisputed that Mr. Wilson is a federal prisoner
currently serving his Superior Court sentence and challenging
his impending federal sentence as a violation of his due process
rights. See Def.’s Mot. to Vacate, ECF No. 20 at 1 (listing the
“USP McCreary” as his “Place of Confinement”), 4 (arguing his
“sentence [is] in violation of due process of law”); see also
Federal Bureau of Prisons, Inmate Locator,
https://www.bop.gov/inmateloc/ (last visited January 23, 2019)
(showing that “Rayfield Wilson” is located at “McCreary USP”).
Because he is incarcerated in a federal prison and the federal
district court has sentenced him, the Court finds that
Mr. Wilson is “in custody” within the meaning of Section 2255.
See Ospina, 386 F.3d at 752.
B. Mr. Wilson’s Motion Is Time-Barred Since He Filed It After the Filing Deadline of April 24, 1997
The Court next considers if Mr. Wilson’s motion is time-
barred. Mr. Wilson acknowledges that the AEDPA “implemented time
restrictions on the filing of § 2255 motions[.]” See Def.’s
Reply, ECF No. 24-1 at 4. Relying on D.C. Circuit precedent, the
government argues that Mr. Wilson had until April 24, 1997 to
file his motion because his conviction became final in 1995. See
10 Gov’t’s Opp’n., ECF No. 23 at 4 (citing United States v. Cicero,
214 F.3d 199, 202 (D.C. Cir. 2000)). The government argues that
Mr. Wilson’s motion is “too late” because he waited until 2017
to file it. Id.
Prior to 1996, “a prisoner could challenge his conviction
or sentence as a violation of the Constitution of the United
States by filing a motion under 28 U.S.C. § 2255 at almost any
time.” Cicero, 214 F.3d at 200. “Effective April 24, 1996, the
Antiterrorism and Effective Death Penalty Act (AEDPA) amended §
2255 to impose a 1-year period of limitation on motions brought
under [Section 2255].” United States v. Saro, 252 F.3d 449, 451
(D.C. Cir. 2001) (internal quotation marks omitted).
“[P]risoners . . . whose convictions became final before [the]
AEDPA’s effective date, had a one-year grace period from that
date in which to file a § 2255 motion-yielding a filing deadline
of April 24, 1997.” Id. (citing Cicero, 214 F.3d at 202).
The operative date from which the limitation period is
measured will be the latest of the following four enumerated
circumstances:
(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;
11 (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.
18 U.S.C. § 2255(f). Generally, “the operative date . . . will
be the one identified in [Section 2255(f)(1)]: the date on which
the judgment of conviction becomes final.” Dodd v. United
States, 545 U.S. 353, 357 (2005) (citations and internal
quotation marks omitted). “But later filings are permitted where
subparagraphs (2)-(4) apply.” Id.
None of the circumstances identified in subparagraphs (2)
through (4) apply to Mr. Wilson’s situation. Liberally
construing his pro se motion, Mr. Wilson’s reliance on the
Supreme Court’s decision in Setser, which was decided on March
28, 2012, does not allow his motion to fall under Section
2255(f)(3). See generally Def.’s Memo. of Law & Facts,
ECF No. 19; Def.’s Reply, ECF No. 24-1. In Setser, the Supreme
Court addressed the issue of whether a federal district judge or
the BOP should decide if the defendant’s federal sentence should
run consecutively to or concurrently with his anticipated state
sentences. 566 U.S. at 234-35. The Supreme Court held that a
federal district court retained discretion to order that a
12 federal sentence run consecutively or concurrently “where a
federal judge anticipates a state sentence that has not yet been
imposed.” Id. at 236. The present case is significantly
different from Setser because the federal district court
sentenced Mr. Wilson in 1995 after Judge von Kann imposed his
sentence in 1994 for second-degree murder, voluntary
manslaughter, and two other related charges. See Judgment and
Commitment, ECF No. 18.
Furthermore, Mr. Wilson’s motion does not fall under
Section 2255(f)(3). The Supreme Court in Setser did not announce
a new substantive rule that applies retroactively to cases on
collateral review. See Smith v. United States, No. CIV. AW-13-
796, 2013 WL 4605406, at *3-4 (D. Md. Aug. 28, 2013) (rejecting
petitioner’s argument that Setser established a new substantive
rule that applies retroactively within the guidelines of
§ 2255(f)(3)); cf. United States v. Hopkins, No. 1:06-CR-0064,
2013 WL 2147793, at *5 (M.D. Pa. May 16, 2013) (concluding that
Setser did not “constitute an intervening change in the law
necessitating reconsideration of [petitioner’s] sentence[.]”),
aff’d, 568 F. App’x 143 (3d Cir. 2014). Thus, Mr. Wilson’s
motion must fall under Section 2255(f)(1)—the date on which the
judgment of conviction became final. See 18 U.S.C. § 2255(f)(1).
Mr. Wilson’s federal conviction became final on July 10,
1995 because he did not file a notice of appeal within ten days
13 after the entry of the judgment on June 29, 1995. 4 See United
States v. Ingram, 908 F. Supp. 2d 1, 4 (D.D.C. 2012) (“Where, as
here, a federal criminal defendant does not appeal to the court
of appeals, the judgment becomes final upon the expiration of
the period in which the defendant could have appealed to the
court of appeals.” (citations and internal quotation marks
omitted)).
A defendant, like Mr. Wilson, whose conviction became final
before the enactment of the AEDPA had until April 24, 1997 to
file the Section 2255 motion within the one-year grace period.
See, e.g., Saro, 252 F.3d at 451; Cicero, 214 F.3d at 202.
Mr. Wilson filed his motion on November 20, 2017, more than
twenty years after the filing deadline. Accordingly, the Court
finds that Mr. Wilson’s motion is time-barred because it was
filed outside of the one-year grace period.
C. The Equitable Tolling Doctrine and the Actual Innocence Exception Do Not Apply to Mr. Wilson’s Motion
Mr. Wilson does not dispute that his motion was filed after
the one-year grace period expired on April 24, 1997, but he
argues that the Court should consider his motion because his
federal consecutive sentence constitutes a “miscarriage of
4Under the then-applicable version of the Federal Rules of Appellate Procedure, a criminal defendant had to file a notice of appeal in the district court within ten days after the entry of the judgment. See Fed. R. App. P. 4(b), 26(a) (1995). 14 justice.” See Def.’s Reply, ECF No. 24-1 at 4. He argues that
the miscarriage of justice exception applies here because his
federal consecutive sentence “for all intents and purposes
constitutes double jeopardy[.]” Id. at 5. The government did not
address this exception in its opposition.
A court may consider an untimely Section 2255 motion if the
defendant establishes: (1) grounds for equitable tolling, or
(2) a credible showing of actual innocence. E.g., United States
v. Tabi, 264 F. Supp. 3d 15, 16 (D.D.C. 2017); Peterson,
916 F. Supp. 2d at 106. Here, Mr. Wilson does not allege any
facts that would support the application of the equitable
tolling doctrine in this case. See generally Def.’s Memo. of Law
& Facts, ECF No. 19; Def.’s Mot. to Vacate, ECF No. 20; Def.’s
Reply, ECF No. 24-1. Equitable tolling requires a defendant to
establish: (1) “he has been pursuing his rights diligently,” and
(2) “some extraordinary circumstance stood in his way.” United
States v. McDade, 699 F.3d 499, 504 (D.C. Cir. 2012) (quoting
Holland v. Florida, 560 U.S. 631, 649 (2010)). Here, Mr. Wilson
does not allege any facts to establish that he has been
diligently pursuing his rights since his federal conviction in
1995, and he fails to point to any extraordinary circumstances
which would allow the Court to equitably toll the filing
deadline of April 24, 1997. See generally Def.’s Memo. of Law &
15 Facts, ECF No. 19; Def.’s Mot. to Vacate, ECF No. 20; Def.’s
Reply, ECF No. 24-1.
Mr. Wilson relies on McQuiggin v. Perkins, 569 U.S. 383
(2013) to support his argument that his claims are not time-
barred. See id. at 4-5. In McQuiggin, the Supreme Court
instructed that “[t]he miscarriage of justice exception . . .
applies to a severely confined category: cases in which new
evidence shows it is more likely than not that no reasonable
juror would have convicted the petitioner.” 569 U.S. at 394-95
(citation and internal quotation marks omitted). The Supreme
Court held that “actual innocence, if proved, serves as a
gateway through which a petitioner may pass whether the
impediment is a procedural bar . . . or . . . expiration of the
statute of limitations.” Id. at 386.
Here, Mr. Wilson fails to point to any newly-discovered
evidence or facts to overcome the statute of limitations. He
does not even assert his actual innocence of the federal crime
to which he pled guilty. See generally Def.’s Memo. of Law &
Facts, ECF No. 19; Def.’s Mot. to Vacate, ECF No. 20; Def.’s
Reply, ECF No. 24-1. Because he fails to allege any facts to
support the application of the equitable tolling doctrine or
that the actual innocence exception is warranted, the Court is
not persuaded that Mr. Wilson’s untimely motion should be
considered.
16 Having found that he filed the motion more than twenty
years after the one-year grace period expired on April 24, 1997,
the Court concludes that Mr. Wilson is procedurally barred from
relief under Section 2255. The Court cannot reach the merits of
Mr. Wilson’s motion because it is time-barred. See, e.g., Tabi,
264 F. Supp. 3d at 17 (concluding that “[t]he Court need not
reach the merits” of petitioner’s claim because his motion was
untimely); United States v. Thompson, 587 F. Supp. 2d 121, 124
n.3 (D.D.C. 2008) (“Since petitioner's motion is time-barred,
the Court need not reach the merits of his claims.”).
The Court need not hold an evidentiary hearing before
denying his motion on procedural grounds. See, e.g., United
States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (“A judge
need not conduct an evidentiary hearing before denying a
petition for relief under § 2255 when ‘the motion and the files
and records of the case conclusively show that the prisoner is
entitled to no relief.’” (quoting 28 U.S.C. § 2255(b)); United
States v. Allen, 241 F. Supp. 3d 101, 106 (D.D.C. 2017) (denying
petitioner’s request for an evidentiary hearing because his
untimely motion was denied on procedural grounds).
III. Conclusion
For the foregoing reasons, the Court DENIES Mr. Wilson’s
motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255. The Court therefore directs the Clerk of Court
17 to CLOSE civil case number 17-cv-2671. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge February 7, 2019