1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA ,

v. ERIC A. HICKS , Defendant. C riminal Action No. 93

- 0097 (BAH) Chief Judge Beryl A. Howell

MEMORANDUM OPINION AND ORDER In 1994, the defendant Eric Hicks was sentence d to two concurrent terms of life imprisonment , without possibility of parole , after h is convict ion at trial of conspir ing to possess with intent to distribute cocaine base and to participate in a Racketeering Influenced and Corrupt Organization (“RICO”), and three counts of distributing cocaine base, in violation of 18 U.S.C. § 1962(d) and 21 U.S.C. §§ 841 and 846 , stemming from his participation in the “First Street Crew,” which , from early 1988 until March 1993, sold crack cocaine and engaged in “violent activities.” United States v. White , 116 F.3d 903, 9 09 (D.C. Cir. 1997)

. Over the last twenty

three years, the defendan t has unsuccessful ly sought relief, pursuant to 28 U.S.C. § 2255, and again seek s to vacate, set aside, or correct his sentence in light of a new, previously unavailable
rule of constitutional law , announced by the Supreme Court in Graham v. Florida , 560 U.S. 48 , 82 (2010) (holding that “ [t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offen der who did not commit homicide ” ) , Miller v. Alabama , 567 U.S.
460 , 465 (2012) (extending Graham to hold that “ that mandat ory life without parole for those under the age of 18 at the time of their crime s violates the Eighth Amendment” ) , and Montgomery v. Louisiana , 136 S. Ct. 718, 732 (2016 ) (holding that “ Miller announced a
substantive rule that is retroactive in cases on col lateral review ” )

. Def.’s § 2255 Mot. Vacate2

(“Def.’s Mot.”) ¶

¶ 13, 18 , ECF No. 640 ; Def.’s Mem. Supp. § 2255 Mot. (“Def.’s Mem.”) at 5

– 6 , ECF No. 640

- 1

. 1 The defendant argues that , under Graham and Miller , which prohibit mandatory sentences of life without parole for crimes committed by juveniles, his sentence
violate s the Eighth Amendment’s prohibition against cruel and unusual punishment because his
five

- year - participation in the drug and RICO conspiraci es , for which he stands convicted, began one day before his eighteenth birthday. As explained below, t h is motion is untimely and , even if timely , would be denied as merit less

. 2
I. LEGAL STANDARD
T he petitioner bringin g a 28 U.S.C. § 2255 motion bears the burden of establish ing, by a preponderance of evidence , a denial of constitutional rights. Daniels v. United States , 532 U.S. 374, 381

– 82 (2001); United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973) (concluding that, in § 2255 action to set as ide plea of guilty, “the preponderance of evidence supports the judgment rejecting petitioner’s claim”). Any § 2255 motion is subject to “ the strict time limits that Congress has placed on prisoners seeking collateral relief. ” United States v. Hicks , 283 F.3d 380, 385 (D.C. Cir. 2002)

. When claiming relief under a new rule of constitutional law , the §
2255 motion must be filed within one year from “the date on which the right asserted was initially recognized by the Supreme Court.” 28 U.S.C. § 2255(f)( 3). A right is “initially recognized” on “the date on which [the Supreme] Court ‘initially recognized’ the right asserted in an applicant’ s § 2255 motion,” not “the date on which the right is ‘made retroactiv[e].’” Dodd
v. United States , 545 U.S. 353, 35 4

– 55 (2005) (alteration in original); see also In re Williams,

1 The defendant simultaneously filed a separate § 2255 motion seeking a sentence reduction, based on Johnson v. United States , 135 S. Ct. 2551 (2015). Def.’s § 2255 Mot. Vacate, ECF No. 641. That motion was denied

. M em. Op. and O rder, dated Nov. 16, 2016, ECF No. 642 ; see also Mem. Op. and Order, dated June 14 , 2017, ECF No. 658 (denying motion for reconsideration)

. 2 In granting petitioner leave to file the instant successive § 2255 motion, the D.C. Circuit expressed “no opinion as to the timeliness of [the defendant’s] § 2255 motion or the merits of his claims.” I n re Hicks , USCA No. 16

- 3030, 2016 U.S. App. LEXIS 16484 at *1, ECF No. 638 (D.C. Cir. Sept 7, 2016).3

759 F.3d 66, 68 (D.C. Cir. 2014) (holding the date on which case finding a new rule of constitutional law “ was decided ” is “ the date on which the right asserted was initially recognized by the Supreme Court”). Though this statutory bar has “the potential for harsh results in some cases,” the c ourt s are “not free to rewrite the statute that Congress has enacted.” Dodd , 545 U.S.

at 359. II. DISCUSSION
The timeliness and merits , or lack thereof , of the defendant’s § 2255 motion are addressed seriatim below.
A

. § 2255 MOTION IS UNTIMELY
The defendant filed the instant § 2255 motion , on September 7, 2016, within one year of Montgomery v. Louisiana , 136 S. Ct. 718, 732 (2016 ) , which applied retroactively the rules
announced in Graham and Miller

. See Def.’s Mot . The date on which Montgomery was decided
is not, however, when the new constitutional rule was “initially recognized

. ” Dodd , 545 U.S. at 359; In re White , 2017 U.S. App. LEX IS 2125 at *1 (D.C. Cir. Feb. 6, 2017)

. Thus, to the extent
that the defendant contends that his § 2255 petition is timely because it “has been filed whin [sic] one year of . . . Montgomery ,” Def.’s Mot ¶ 18, he is incorrect. To the contrary , the defenda nt filed the instant motion more than five years after Graham was decided and nearly three years
after Miller was decided. Th us, th e deadline for a timely petition by the defendant was , at the latest, in June 2013 , one year after Miller , rendering his motion untimely

. The defendant nonetheless argues in his reply that the one

- year statute of limitations should be subject to equitable tolling

. Def.’s Reply to Gov’t’s Opp ’ n to § 2255 Mot. (“Def.’s Reply”) at 2 , ECF No. 671. 3 As support, t he d efendant s t ates that “certain occurrences so

3 The defendant requests that his equitable tolling argument be treated as conceded under Local Civil Rule 7(b) , due to the government’s failure to rebut this argument, which the defendant had raised in his reply seeking4

compromised his mental state during the relevant period that he was rendered unable to identify or articulate an Eighth Amendment claim

. ” I d. at 3

. 4
A habeas petitioner 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”

to prevent timely filing. Holland v. Florida , 560 U.S. 631, 6 49 (2010) ; see also United States v.
McDade , 699 F.3d 499, 500 (D.C. Cir. 2 012) (“ Guided by Holland v. Florida , interpreting 28 U.S.C. § 2244, we join our sister circuits in holding that equitable tolling applies to § 2255
motions .” (internal citation omitted))

. The extraordinary circumstance cited by the defendant is “the level of stress and trauma attributable to his service of a life sentence, the disappearance of his parents and the correspondence he received indicating that his mother was alive and would contact him and his sister.” Def.’s Reply to Gov’t’s Opp ’n to Leave to File § 2255 Mot. (“Def.’s Cir. Reply”) at 3 , D.C. Cir. No. 16

- 3030, Doc. No. 1621771 (D.C. Cir. June 24, 2016 )

. The
d efendant’s mother has apparently been missing since 1975, and t he alleged correspondence consisted of approximately five anonymous letter s sent to the defendant between November
2009 and February 2014 concerning his mother being alive

. Id. at 2 ; id. , Ex. 1, Sworn Aff

. of Eric Hicks (“Def.’s Aff.”) ¶¶ 2

– 3

. In an affidavit filed at the D.C. Circuit, the defendant asserts that “he was so distraught, distressed, and traumatized that it rendered him unable to locate,

authorization from the D.C. Circuit to file a successive § 2255 motion . Def.’ s Reply at 4

– 5. This request is denied since the equitable tolling argument was raised for the first time before this Court only in his reply brief , to which the government has no automatic right to respond

. See LCvR 7(b); Winston & Strawn, LLP v. McLean , 843 F.3d 503 , 505 (D.C. Cir. 2016) (noting that treating a motion as conceded is within the D istrict C ourt’s discretion). 4 The defendant also explains that, in 2014, he was pursuing commutation under President Obama’s Clemency Initiative, which effort was only permitted if no other forms of judicial or administrative relief are available and thus a pending § 2255 motion would have disqualified him from seeking clemency. Def.’s Reply at 3

– 4

. T he defendant was first contacted in 2014 regarding the Cleme ncy Initiative, Def.’s Reply to Gov’t’s Opp ’n to Leave to File § 2255 Mot. at 2, No. 16

- 3030, Doc. No. 1621771 (D.C. Cir. June 24, 2016 ), and therefore this excuse cannot serve as a basis for any equitable tolling of the one

- year period after Miller , betwe en June 2012 and June 2013

.5

research or litigate a legal claim or to assist any individual doing the same on his behalf.” Def.’s
Aff

. ¶ 4

. Although the receipt of letters about a long

- missing parent would understandably c ause the defendant emotional distraction and even distress , the D.C. Circuit has never held that such
distress constitute s “extraordinary circumstances” warrant ing equitable tolling of the applicable
limitations period for the filing of a § 2255 motion

. 5 While some circuits have found that mental incompetence may constitute an extraordinary circumstance warranting equitable tolling of § 2255’s limitations period, this has been limited to cases where the incompetence is so severe as to have been subject to diagnosis and documentation by medical or expert personnel or otherwise requiring some form of hospitalization. S ee , e.g. , Bills v. Clark , 628 F.3d 1092 , 1094

– 95 (9th Cir. 2010) ( allowing equitable tolling where the petitioner was illiterate and had “neurological deficits, borderline to mildly retarded level of intelligence ,” and “ could [not] understand his legal rights sufficiently to make rational choic es with respect to acting upon them” (alteration in original ); Stiltner v. Hart , 657 Fed. App’x. 513, 52 2 (6th Cir. 2016) ( tolling the statute of limitations where detailed evidence showed that the petitioner was in fact “mentally incompetent” ) . B y contrast, undocumented and otherwise unsupported claim s of incompetence
have been found insufficient to establish “extraordinary circumstances.” See, e.g. , Alva v. Busby , 588 Fed. App’x 621, 622 (9th Cir. 2014) ( denying equitable tolling where petitioner’ s claim that

“ he suffered from distress and hypoglycemia which caused confusion and difficulty thinking

. . . does not meet the Bills standard”) ; Champney v. Sec’y Pa. Dep’t of Corr. , 469 Fed. App’x 113,

5 The defendant’s claim that he suffered four years of incapacitating distress during the period that he receiv ed the five letter s about his mother is too convenient to be credible and is belied by his litigating activities during this period of 2009 to 2014, when he received the last letter. Specifically, t he defendant was sufficiently able to function to file a pro se motion in this Court in 2012, see Order Denying Motion to Join Co

- Defendant’s Motion, ECF No. 624, and to initiate a Freedom of Information Act (FOIA) suit , in January 2013 , against the Executive Office for the United States Attorneys, see Hicks v. Exec. Office for United States Attys. , 12 F. Supp. 3d 25 (D.D.C. 2013).6

117

– 18 (3d Cir. 2012) (denying equitable tolling whe re petitioner had never “been adjudicated incompetent”); see also United States v. Williams , 485 Fed. App’x 978, 979 (10th Cir. 2012) (“ Equitable tolling based on mental incapacity is warranted only in exceptional circumstances, where, for example, the obj ective standard of adjudication or institutionalization is met .” (internal quotation marks omitted)). The defendant’s claim

—unsupported except by his own
three

- page affidavit

— of incapacitating stress from letters about his long

- lost mother simply falls
far short of establish ing the severe level of mental incapacity shown in Bills or Stiltner that
would meet the standard of extraordinary circumstances warranting equitable tolling of the limitations period. 6 Accordingly, the defendant’s § 225 5 motion must be dismissed as untimely.
B

. § 2255 MOTION IS WITHOUT MERIT Even if not untimely, the instant motion would fail on the merits because Graham and
Miller present no bar to the sentence imposed. As the defendant concedes, t he superseding indictment alleged that the charged conspiracies occurred from “on or about February 1988 ” through February 1993, and , consequ ently, since his birthday is February 2, 1970, t he defendant was a juvenile for , at most , one day during the five y ear s of the charged conspiracies . Def.’s
Mem. at 3

. Indeed, much of the evidence proving the defendant’s participation in the conspiracy to distribute cocaine base and the RICO conspiracy post

- dates his ei ghteenth birthday on February 2, 1988

. See Gov’t ’s Opp’n to Def.’s § 2255 M otion (“ Gov’t’s Opp’n ”), at 4

– 8 , ECF
No. 645 (summarizing evidence presented at trial , including the defendant’s December 1988 arrest for selling “crack cocaine to an undercover po lice officer ” ; video evidence from the

6 E ven if equitable tolling on the basis of mental incapacity were available in this Circuit, the defendant’s factual support for this claim is wholly insufficient to warrant further development of the record. Compare B oulb v. United States , 818 F.3d 334, 340 (7th Cir. 2016) (denying remand for an evidentiary hearing where the petitioner provided only “conclusory allegations,” not “specific facts about those alleged mental deficiencies” ), with Dent v. Knowles , 448 Fed. A pp’x 705, 706 (9th Cir. 2011) (remanding to develop the record where the pro se petitioner had “made a good

- faith showing of mental incompetence” by “attach[ing] a sworn declaration and roughly 70 pages of documentation, including medical records” showing an IQ of 56).7

summer of 1990 of drug activity ; drug sales by the defendant in late 1991 ; and evidence from searches of residences in August 1990 and February 1992 )

. Moreover, t he government correctly
notes that Graham and Miller , which both involved convictions for discrete , one - time acts by juveniles

— attempted burglary and attempted armed robbery in Graham , 560 U.S. at 53

– 54, and
murder in Miller , 567 U.S. at 465

—have not been extended to convictions where any of the
crimi nal acts occurred substantially or in part after the defendant’s eighteenth birthday. Gov’t ’s Opp’n at 8. Thus, the defendant’s claim is without merit.
C. NO CERTIFICATE OF APPEALABILITY IS WARRANTED If a district court “enters a final order adverse to the applicant,” it “must issue or deny a certificate of appealability” (“COA”) to the defendant. Fed. R. Crim. Pro. Gov. § 2255 Proceedings 11; United States v. Mitchell , 216 F.3d 1126, 1130 (D.C. Cir. 2000) (“[T]he district court should rule in the first instance on whether a COA should be issued” (citing Fed. R. App. P. 22(b)). A certificate of appealability is appropriate when the defendant shows “that reasonable jurists would find the district court ’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). If the court denies the § 2255 motion on procedural grounds, a COA should issue only if “jurists of reason would find it debatable whether the pe tition states a valid claim of the denial of a constitutional right and [] jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”
United States v. Baxter , 761 F.3d 17, 26 n.10 (D.C. Cir. 2014) (quoting Slack , 529 U.S. at 484). In this case, the defendant is not entitled to a COA because “reasonable jurists” would not debate that the defendant failed to file a timely § 2255 motion and that equitable tolling is not
warranted.8

III. CONCLUSION
For the for egoing reasons, petitioner’s § 2255 motion to vacate his sentence is denied as untimely and, in any event, would otherwise fail on the merits. Accordingly, it is hereby ORDERED that the defendant’s Motion to Vacate, Set Aside or Correct His Sentence,
ECF No. 6 40 , is DENIED ; and it is further ORDERED that no certificate of appealability will issue

. SO ORDERED

Date: January 5 , 201 8

__________________________ BERYL A. HOWELL Chief Judge