United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
R. ADAMS, UNITED STATES DISTRICT JUDGE
instant matter is before the Court upon Petitioner Hartmut
Graewe's (“Petitioner”) Motion to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody,
pursuant to 28 U.S.C. § 2255. Doc. 21. The petition is
STANDARD OF REVIEW
prevail under 28 U.S.C. § 2255, a defendant must show a
‘fundamental defect' in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Gall
v. United States, 21 F.3d 107, 109 (6th Cir. 1994). A
federal district court may grant relief to a prisoner in
custody only if the petitioner can “demonstrate the
existence of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury's verdict.” Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003).
28 U.S.C. § 2255(f)(1) provides as follows: “A
1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the
… date on which the judgment of conviction becomes
The one-year statute of limitations for filing a § 2255
petition is subject to equitable tolling. See Hall v.
Warden, Lebanon Corr. Inst., 662 F.3d 745, 749-50 (6th
Cir. 2011) (citing Holland v. Florida, __ U.S. __,
__, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010)). Petitioner
bears the burden of demonstrating he is entitled to equitable
tolling. See McClendon v. Sherman, 329 F.3d 490, 494
(6th Cir. 2003). Equitable tolling “allows courts to
toll a statute of limitations when a litigant's failure
to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant's control.”
Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir.
2010) (internal quotation marks omitted). Until recently, we
used a five-factor inquiry to determine whether a habeas
petitioner was entitled to equitable tolling. See Dunlap
v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001)
(identifying the following factors as relevant to the
equitable tolling determination: (1) the petitioner's
lack of notice of the filing requirement; (2) the
petitioner's lack of constructive knowledge of the filing
requirement; (3) diligence in pursuing one's rights; (4)
absence of prejudice to the respondent; and (5) the
petitioner's reasonableness in remaining ignorant of the
legal requirement for filing his claim). The factors were
“not necessarily comprehensive or always
relevant.” Keenan v. Bagley, 400 F.3d 417, 421
(6th Cir. 2005). The Supreme Court's decision in
Holland replaced the five-factory inquiry with a
two-part test, under which a habeas petitioner is entitled to
equitable tolling only if the petitioner shows that (1)
“he has been pursuing his rights diligently, ”
and (2) that “some extraordinary circumstance stood in
his way and prevented timely filing.” Hall,
662 F.3d at 749 (citing Holland, 130 S.Ct. at 2562).
Johnson v. United States, 2012 WL 171379, at *7 (6th
Cir. Jan. 23, 2012).
LAW AND ARGUMENT
sentence was reduced to a judgment entry on April 7, 1983.
Along with his co-defendants, Petitioner appealed his
convictions and sentence. The Sixth Circuit affirmed
Petitioner's convictions and sentence on May 29, 1985.
United States v. Gallo, 763 F.2d 1504 (6th Cir.
1985). The United States Supreme Court denied a petition for
a writ of certiorari in 1986. Petitioner did not file the
instant petition until March of 2018, decades beyond the
statute of limitations. Petitioner raises no argument for
equitable tolling. Moreover, Petitioner wholly fails to argue
in any manner why his petition should be considered timely.
Accordingly, the Court concludes that the petition is time
foregoing reasons, Petitioner's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody is hereby
DISMISSED. Doc. 21.
the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that an appeal from this decision could not be taken in good
faith, and that there is no basis upon which to issue a
certificate of appealability pursuant to 28 U.S.C. §
2253(c); Fed. R. App. P. 22(b).