United States District Court, N.D. Oklahoma
OPINION AND ORDER
V, EAGAN LIMITED STATES DISTRICT JUDGE
before the Court is defendant Edd Tawon Payne's motion to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255 (Dkt. # 73). Section 2255 provides that “[a]
prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States . . . may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a).
Plaintiff has filed a motion to dismiss (Dkt. # 77)
defendant's § 2255 motion as time-barred.
2004, defendant was convicted of Hobbs Act robbery and
brandishing or carrying a firearm during a crime of violence.
He was sentenced to a total term of imprisonment of 141
months, followed by a five year term of supervised release.
United States v. Edd Tawon Payne, 04-CR-021-003-CVE,
Dkt. # 130 (N.D. Okla.). Defendant served his term of
imprisonment and was on supervised release, but he violated
the conditions of his supervised release. Defendant was
arrested, and stipulated to two violations of his conditions
of supervised release. 04-CR-021-CVE, Dkt. # 164. Defendant
received a sentence of six months for the violations and the
Court re-imposed a term of 30 months supervised release
following completion of the six month sentence.
04-CR-021-CVE, Dkt. # 170.
August 18, 2017, defendant was arrested by the Tulsa Police
Department on a charge of bank robbery, and he was taken into
state custody. 04-CR-021-CVE, Dkt. # 175. Defendant's
actions also violated the terms of his supervised release,
and the Court issued an arrest warrant based on four
violations of his conditions of release. Id.
Defendant was sentenced to a term of 40 months imprisonment
for the violations of the conditions of supervised release.
04-CR-021-CVE, Dkt. # 199. On November 28, 2017, a magistrate
judge signed a complaint (Dkt. # 1) in this case charging
defendant with bank robbery in violation of 18 U.S.C. §
2113, and a grand jury returned an indictment (Dkt. # 26)
charging defendant with conspiracy to commit a crime against
the United States (count one) and bank robbery (count two).
Defendant pled guilty to both counts without a plea
agreement. Dkt. # 34. On May 7, 2018, the Court held a
sentencing hearing and sentenced defendant to 46 months as to
counts one and two. Dkt. # 61. The sentences as to counts one
and two were ordered to run concurrently with each other, but
the sentence in this case was to be served consecutively to
the revocation sentence imposed in Case No. 04-CR-021-CVE.
The Court entered judgment and commitment (Dkt. # 62) on May
8, 2018, and defendant did not file a notice of appeal.
Defendant's convictions became final on May 22, 2018 when
his deadline to file a notice of appeal expired.
16, 2019, defendant filed a motion for relief from judgment
under Fed.R.Civ.P. 60(b) (Dkt. # 66) and shortly thereafter
he filed an amended Rule 60(b) motion (Dkt. # 68). The Court
advised defendant that it intended to construe his motion
(Dkt. # 66) as a § 2255 motion, and the Court gave him a
deadline to withdraw his motions (Dkt. # 66, 68) and file a
§ 2255 motion raising all claims that he intended to
pursue in his original § 2255 motion. Defendant
requested leave to withdraw his prior motions (Dkt. # 72)
and, on October 21, 2019, he filed a § 2255 motion (Dkt.
# 73) claiming that he is actually innocent of bank robbery.
The Court ordered plaintiff to file a response to
defendant's § 2255 motion, and plaintiff filed a
motion to dismiss (Dkt. # 77) defendant's § 2255
motion. Plaintiff argues that defendant failed to sign his
motion under penalty of perjury and his motion was filed more
than one year after his convictions became final. Defendant
has filed a response, and he argues that the Court should
consider the merits of his claims, even if untimely, based on
his assertion of actual innocence.
motion to dismiss (Dkt. # 77), plaintiff argues that
defendant's § 2255 motion should be dismissed as
untimely. Section 2255 motions are subject to a one-year
statute of limitations, running from the latest of
(1) the date on which the judgment of conviction becomes
(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
(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.
§ 2255(f). Defendant's convictions became final on
May 22, 2018 when his deadline to file a notice of appeal
expired. Defendant's § 2255 motion (Dkt. # 73) was
received by the Court Clerk on October 21, 2019 and it was
placed in the mail on October 18, 2019. Defendant's
earliest post-conviction motion was his motion for relief
under Rule 60(b) (Dkt. # 66), and that was received by the
Court Clerk on July 16, 2019 and placed in the mail on July
12, 2019. Even using the filing date of the earliest
post-conviction motion, defendant's § 2255 motion
could not be deemed to have been filed within one year of the
date his convictions became final, and his § 2255 motion
is untimely under § 2255(f)(1). The Court can discern no
other basis under § 2255(f) under which defendant's
motion could be timely, and his § 2255 motion should be
dismissed as untimely.
argues that he has raised a colorable claim of actual
innocence, and he asserts that he should be permitted to
proceed with his claims to avoid a miscarriage of justice.
Dkt. # 78. Defendant relies on McQuiggin v. Perkins,
569 U.S. 383 (2013), for the proposition that a claim of
actual innocence can overcome a procedural default, such as
untimeliness. Dkt. # 78, at 1-2. In McQuiggin, the
Supreme Court found that a convincing claim of actual
innocence based on new evidence could permit a federal
district court to entertain an untimely first motion under 28
U.S.C. § 2254 to prevent a miscarriage of justice.
McQuiggin, 569 U.S. at 397-98. The Tenth Circuit has
applied McQuiggin to untimely § 2255 motions
and the Court may consider whether defendant's assertion
of actual innocence excuses the untimeliness of his §
2255 motion. United States v. Bowen, 936 F.3d 1091,
1108 (10th Cir. 2019). To invoke the miscarriage of justice
exception, a claimant must “show that it is more likely
than not that no reasonable juror would have convicted him in
the light of the new evidence.” McQuiggin, 569
U.S. at 399 (quoting Schlup v. Delo, 513 U.S. 298,
327 (1995)). A court may consider whether the claimant acted
diligently in presenting the new evidence to the court as
part of its assessment concerning the claimant's
credibility and the reliability of the evidence. Id.
The Tenth Circuit has been clear that equitable tolling of
the statute of limitations “is rare and will
‘only be applied in extraordinary
circumstances.'” Lopez v. Trani, 628 F.3d
1228, 1231 (10th Cir. 2010) (quoting Schlup, 513
U.S. at 321).
Court has reviewed defendant's § 2255 motion (Dkt. #
73) and his reply (Dkt. # 78), and finds that no miscarriage
of justice will result if his motion is dismissed as
time-barred. When reviewing a claim of actual innocence, a
court may consider whether the defendant pled guilty and
admitted to the essential elements of the charged offense.
United States v. McAbee, 685 Fed.Appx. 682, 686
(10th Cir. Apr. 20, 2017). Defendant admitted to the essential
elements of counts one and two at the change of plea hearing,
and he signed a petition admitting to the following facts:
On or about August 16, 2017, in the Northern District of
Oklahoma, I agreed with Emmanuel Britto and an unindicted
person known as TA, to commit a robbery of the Bank of
America located at 205 E Pine Street, Tulsa, Oklahoma. I did
not enter the bank. I did travel to the bank with Mr. Britto
and TA. I knew that TA was carrying a “hoax bomb”
in order to carry out the robbery. I took the disguise TA had
worn into the bank and ...