United States District Court, N.D. Ohio
OPINION & ORDER [RESOLVING DOC. 37, 1:15-CR-302]
[RESOLVING DOC. 1, 1:17-CV-2213]
S. GWIN, UNITED STATES DISTRICT JUDGE.
Tate petitions for a writ of habeas corpus under 28 U.S.C.
§ 2255. With her petition, Tate argues that she
should not have to pay the full amount of the Court's
restitution order. For the reasons below, the Court
DISMISSES Tate's petition.
September 21, 2015, Tate pleaded guilty to Count 1 for
conspiracy to make false claims; Count 27 for false claims;
and Count 28 for aggravated ID theft. The Court accepted the plea
agreement reached between the government and
Tate. That plea agreement contained a section
entitled “Waiver of Appeal and Post-Conviction
Attack.” Under that section, Tate waived the vast
majority of her appellate and post-conviction rights
regarding her sentence, “including a proceeding under
28 U.S.C. § 2255.” The plea-agreement waiver stated:
Defendant expressly and voluntarily waives those rights,
except as specifically reserved below. Defendant reserves the
right to appeal: (a) any punishment in excess of the
statutory maximum; or (b) any sentence to the extent it
exceeds the maximum of the sentencing imprisonment range
determined under the advisory Sentencing Guidelines in
accordance with the sentencing stipulations and computations
in this agreement, and the mandatory consecutive two-year
sentence for Count 28, using the Criminal History Category
found applicable by the Court. Nothing in this paragraph
shall act as a bar to Defendant perfecting any legal remedies
Defendant may otherwise have on appeal or collateral attack
with respect to claims of ineffective assistance of counsel
or prosecutorial misconduct.
January 6, 2016, the Court sentenced Tate to 32 months of
imprisonment, imposed a $300 special assessment fee, and
ordered restitution of $326, 265.00. On January 8, 2016, the
Court entered its judgment.
did not file a direct appeal. Tate executed and signed her
§ 2255 petition on October 16, 2017. But she says she
placed it in the prison mailing system on September 30,
2017. In her petition, Tate asserts that she
should not have to pay the full restitution amount since she
was not solely responsible for the loss. The
government opposed. Tate did not file a reply.
U.S.C. § 2255 gives a post-conviction means of
collaterally attacking a federal conviction or sentence that
violates federal law. Section 2255(a) provides four grounds
upon which a federal prisoner may challenge his conviction or
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.
prevail on a § 2255 motion alleging a constitutional
error, the movant “must establish an error of
constitutional magnitude which had a substantial and
injurious effect or influence on the
proceedings.” Non-constitutional errors are generally
outside the scope of § 2255 relief. A defendant
alleging a non-constitutional error can only prevail by
establishing a “‘fundamental defect which
inherently results in a complete miscarriage of justice,
' or, an error so egregious that it amounts to a
violation of due process.”
Tate's petition is time-barred.
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a one-year statute of limitations applies to §
2255 petitions. Here, the limitations period began to run
from “the date on which the judgment of conviction
Court sentenced Tate on January 6, 2016, and entered its
judgment and conviction on January 8, 2016. Tate's
conviction and sentence became final upon expiration of the
fourteen-day period during which she could have
appealed. Thus, Tate's deadline for filing a
§ 2255 petition was January 22, 2017.
the mailbox rule, the filing date for a pro se
petition is the date that a petitioner delivers it to prison
authorities. Tate says she placed the petition in the
prison mailing system on September 30, 2017 but then says she
executed it on October 16, 2017. Either way, Tate filed her
petition long after January 22, 2017, and it is therefore
No Tolling Applies.
argues that the one-year statute of limitations does not bar
her motion because she “didn't have any knowledge
of being able to contest what [she] was convicted of”
and because “[n]o one ...