IN THE UNITED STATES DISTRICT COU T 

NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

U.S. DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

T7"'- r;D .t I.LL.,• 

MAY 1 8 2022 1

[ i 

·-· - - ..... ·--·- ·-, 

--·--·-·········----·j CLERK, U.S. D!STRJCT CCURT 

B~---cc------ ._ ____ _:D21' _cI.i~,.;,I)_· -----' 

GREGORY WIND, § 

§ 

§ 

§ 

Movant, 

vs. § NO. 4:22-CV-246-A 

UNITED STATES OF AMERICA, 

§ (NO. 4:18-CR-302-A) 

§ 

§ 

Respondent. § 

MEMORANDUM OPINION AND ORDER 

Came on for consideration the motion filed by Gregory Wind 

under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence 

by a person in federal custody. The court, having considered the 

motion, the government's response (which is titled "Government's 

Motion to Dismiss Section 2255 Motion"), the reply, the record, 

including the record in the underlying criminal case, No. 4:18-

CV-302-A, and applicable authorities, finds that the motion must 

be dismissed as untimely. 

I. 

Background 

The record in the underlying criminal case reflects the 

following: 

On December 12, 2018, movant was named in a one-count 

indictment charging him with use of a false document, in 

Case 4:22-cv-00246-A Document 7 Filed 05/18/22 Page 1 of 8 PageID 41
violation of 18 U.S.C. § l00l(a) (3). CR Doc. 1 9. Movant initially 

entered a plea of not guilty. CR Doc. 14. On February 8, 2019, 

movant appeared before the court with the intent to enter a plea 

of guilty. CR Doc. 17. Movant and his attorney signed a plea 

agreement. CR Doc. 19. They also signed a factual resume setting 

forth the maximum penalties faced by movant, the elements of the 

offense, and the stipulated facts establishing that movant had 

committed the offense. CR Doc. 20. Movant testified under oath 

at re-arraignment that: He understood that he should never 

depend or rely upon any statement or promise by anyone as to 

what penalty would be assessed against him and that his plea 

must not be induced or prompted by any promises, mental 

pressure, threats, force, or coercion; he had discussed with his 

attorney how the sentencing guidelines might apply in his case; 

the court would not be bound by the stipulated facts and could 

take into account other facts; the guideline range could not be 

determined until the presentence report ("PSR") had been 

prepared; his term of imprisonment could be as much as five 

years; he understood the elements of the offense and he admitted 

that all of them existed; he had read and understood the 

indictment; he had read and understood the factual resume and 

1The "CR Doc. " reference is to the number of the item on the docket in the 

underlying criminal case, No. 4:18-CR-302-A. 

2 

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understood everything in it; he was satisfied with his 

representation; no threats or promises had been made to induce 

him to plead guilty; and, the stipulated facts in the factual 

resume were true. CR Doc. 47. 

The probation officer prepared the PSR, which reflected 

that movant's base offense level was 6. CR Doc. 23, 1 20. He 

received a six-level increase because the actual loss was 

$58,003.00. Id. 1 21. He received a two-level reduction for 

acceptance of responsibility. Id. 1 27. Based on a total offense 

level of 10 and a criminal history category of VI, movant's 

guideline imprisonment range was 24 to 30 months. Id. 1 107. 

Movant filed objections, CR Doc. 24, and the probation officer 

prepared an addendum to the PSR. CR Doc. 29. Movant failed to 

comply with his conditions of release and the probation officer 

filed a second addendum to provide further information. CR Doc. 

32. By order signed May 20, 2019, the court notified movant that 

it had tentatively concluded that a sentence significantly above 

the top of the advisory guideline imprisonment range would be 

appropriate and that the court could not find that movant had 

demonstrated acceptance of responsibility. CR Doc. 35. 

On May 26, 2019, the court sentenced movant to a term of 

imprisonment of sixty months. CR Doc. 40. Movant appealed. CR 

Doc. 42. His conviction and sentence were affirmed. United 

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States v. Wind, 79 F. App'x 887 (5th Cir. 2020). On October 5, 

2020, his petition for writ of certiorari was denied. CR Doc. 

54. 

II. 

Grounds of the Motion 

Movant urges two grounds in support of his motion. First, 

he says that the court's sentence was procedurally unreliable 

because the court failed to consider mitigating factors and to 

explain its sentence. Doc.' 1 at 4. 3 Second, he complains that 

the court failed to acknowledge or address his motion for 

downward variance. Id. at 5. 

III. 

Standards of Review 

A. Limitations 

A one-year period of limitation applies to motions under 

§ 2255. The limitation period runs from the latest of: 

(1) the date on which the judgment of conviction 

becomes final; 

(2) the date on which the impediment to making a 

motion created by government 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; 

(3) the date on which the right asserted was initially 

recognized by the Supreme Court, if that right has 

2The "Doc. "reference is to the number of the item on the docket in this 

civil action. 

3 The page reference is to the "Page of " found at the top right portion 

of the document on the court's electronic filing system. 

4 

Case 4:22-cv-00246-A Document 7 Filed 05/18/22 Page 4 of 8 PageID 44
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. 

28 U.S.C. § 2255(f). Typically, the time begins to run on the date 

the judgment of conviction becomes final. United States v. Thomas, 

203 F.3d 350, 351 (5th Cir. 2000). A criminal judgment becomes 

final when the time for seeking direct appeal expires or when the 

direct appeals have been exhausted. Griffith v. Kentucky, 479 U.S. 

314, 321 n.6 (1987) 

B. Section 2255 

After conviction and exhaustion, or waiver, of any right to 

appeal, courts are entitled to presume that a defendant stands 

fairly and finally convicted. United States v. Frady, 456 U.S. 

152, 164-165 (1982); United States v. Shaid, 937 F.2d 228, 231-

32 (5th Cir. 1991). A defendant can challenge his conviction or 

sentence after it is presumed final on issues of constitutional 

or jurisdictional magnitude only, and may not raise an issue for 

the first time on collateral review without showing both "cause" 

for his procedural default and "actual prejudice" resulting from 

the errors. Shaid, 937 F.2d at 232. 

Section 2255 does not offer recourse to all who suffer 

trial errors. It is reserved for transgressions of 

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constitutional rights and other narrow injuries that could not 

have been raised on direct appeal and would, if condoned, result 

in a complete miscarriage of justice. United States v. Capua, 

656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other 

words, a writ of habeas corpus will not be allowed to do service 

for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974); 

United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). 

Further, if issues "are raised and considered on direct appeal, a 

defendant is thereafter precluded from urging the same issues in 

a later collateral attack." Moore v. United States, 598 F.2d 439, 

441 (5th Cir. 1979) (citing Buckelew v. United States, 575 F.2d 

515, 517-18 (5th Cir. 1978)). 

III. 

Analysis 

Movant's conviction became final on October 5, 2020, when 

the United States Supreme Court denied his petition for writ of 

certiorari. Clay v. United States, 537 U.S. 522, 525 (2003). He 

had one year from that date in which to file his motion. 28 

U.S.C. § 2255(f) (1). He did not deposit his motion into the 

prison mail system until March 27, 2022, almost six months late. 

Doc. 1 at 12-13. 

Movant recognizes that his motion is not timely. He urges 

that he should be granted an extension of time because he did 

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not have access to the law library due to COVID restrictions and 

lockdowns. Doc. 1 at 11. He also refers to his transfer to 

participate in a veterans program. Id. 

The doctrine of equitable tolling is applied only in rare 

and exceptional circumstances. In re Wilson, 442 F.3d 872, 875 

(5th Cir. 2006). Movant must show that he was pursuing his 

rights diligently and that some extraordinary circumstance stood 

in his way and prevented the timely filing of his motion. 

Holland v. Florida, 560 U.S. 631, 649 (2010). Neither excusable 

neglect nor ignorance of the law is sufficient to justify 

equitable tolling. Fierro v. Cockrell, 294 F.3d 674, 682 (5th 

Cir. 2002). Movant's lack of legal acumen and unfamiliarity with 

legal process is not sufficient justification to toll 

limitations. United States v. Petty, 530 F.3d 361, 366 (5th Cir. 

2008); Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) 

Equitable tolling applies to limitations of prison library 

access only when those limitations actually prevented the movant 

from timely filing his habeas petition. Krause v. Thaler, 637 

F.3d 558, 561 (5th Cir. 2011). Here, movant has made no such 

showing. Nor has he shown any exercise of diligence. 

Though the court need not reach the merits of the motion, 

as the government points out, the grounds were raised on appeal 

and cannot be raised here. Davis, 417 U.S. at 345; Moore, 598 

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F.2d at 441. Moreover, misapplication of the sentencing 

guidelines, which is what movant is alleging, is not cognizable 

on collateral review. United States v. Williamson, 183 F.3d 458, 

462 (5th Cir. 1999). 

IV. 

Order 

The court ORDERS that movant's motion be, and is hereby, 

dismissed as untimely. 

Pursuant to Rule 22(b) of the Federal Rules of Appellate 

Procedure, Rule ll(a) of the Rules Governing Section 2255 

Proceedings for the United States District Courts, and 28 u.s.c. 

§ 2253 (c) (2), for the reasons discussed herein, the court further 

ORDERS that a certificate of appealability be, and is hereby, 

denied, as movant has not made a substantial showing of the 

denial of a constitutional right. 

SIGNED May 18, 2022. 

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