IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, )

)

v. ) 3:99-CR-111-P(06)

) (3:04-CV-2741-P)

KEVIN LERAY HENDERSON, #33153-077 )

Defendant/Movant. )

MEMORANDUM OPINION AND ORDER

Before the Court for consideration are Movant Kevin Leray Henderson’s motion to

vacate, set aside, or correct sentence filed on December 29, 2004, pursuant to 28 U.S.C. § 2255,

and his motion to be resentenced in accordance with Blakely v. Washington and for appointment

of counsel, filed on January 24, 2005. 

Parties: Movant is presently confined in the federal prison system. The government has

not been ordered to respond. 

Statement of the Case: On March 24, 1999, Movant was charged in a multi-count

indictment with possession with intent to distribute a controlled substance in violation of 21

U.S.C. § 841 (Count 4), and conspiracy to distribute a controlled substance in violation of 21

U.S.C. § 846 (Count 1). Movant pled guilty to the possession count pursuant to a plea

agreement. On February 2, 2000, the District Court sentenced Movant to 144 months

imprisonment and a three-year term of supervised released. The remaining count was dismissed

on the government’s motion. Movant timely appealed. On December 14, 2000, the Court of

Appeals for the Fifth Circuit dismissed the appeal as frivolous. 

On December 29, 2004, Movant filed this § 2255 motion along with a 28-page brief,

challenging the judgment of conviction. In four grounds for relief, he alleges this Court lacked

 

 Case 3:04-cv-02741-P Document 1 Filed 06/24/05 Page 1 of 5 PageID 1
For purposes of this recommendation, the § 2255 motion is deemed filed on 1

December 19, 2004, the date on which Movant signed it and presumably placed it in the prison

mail. See United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (citing Spotville v. Cain,

149 F.3d 374, 377 (5th Cir. 1998)) (holding that a federal petition is deemed filed for

determining application of the AEDPA when the prisoner tenders it to prison officials for

mailing).

The Court liberally construes the motion to be resentenced as a supplement to the 2

§ 2255 motion. 

2

jurisdiction to prosecute him.1

On January 24, 2005, Movant also filed a motion requesting to be resentenced under

Blakely v. Washington, ___ U.S. ___, 124 S.Ct . 2531 (2004), which was recently extended to

the federal sentencing guidelines in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005).2

Analysis: Rule 4(b), of the Rules Governing Section 2255 Proceedings for the United

States District Courts provides in part as follows: 

If it plainly appears from the face of the motion, any annexed exhibits, and the

record of prior proceedings that the moving party is not entitled to relief, the

judge must dismiss the motion and direct the clerk to notify the moving party. 

The Fifth Circuit recently held in the context of a second or successive motion under §

2255 that the United States Supreme Court did not make Booker retroactively applicable to cases

on collateral review. See In re Elwood, ___ F.3d ___, 2005 WL 976998 (5th Cir. Apr. 28, 2005)

(per curiam). While the Fifth Circuit has not yet addressed the applicability of Booker to a first

§ 2255 motion, the circuits that have considered the question have also determined that the

Booker decision is not retroactive to collateral review cases. See Guzman v. United States, 404

F.3d 139, 141-44 (2nd Cir. 2005); Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir.

2005); Varela v. United States, 400 F.3d 864, 866-868 (11th Cir. 2005); McReynolds v. United

 

 Case 3:04-cv-02741-P Document 1 Filed 06/24/05 Page 2 of 5 PageID 2
On January 6, 2005, the Court advised Movant of the one-year statute of 3

limitations and granted him thirty days to show cause why the § 2255 motion should not be

dismissed as barred by the limitation period. Movant filed his response to the show cause order

on January 18, 2005.

3

States, 397 F.3d 479, 480-81 (7th Cir. 2005). Therefore, under the law of this Circuit, Movant’s

claim under Booker is foreclosed. Such a claim is not cognizable in a section 2255 action.

 Movant’s remaining claims are time barred. The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), establishes a one-year statute of limitations for federal inmates

seeking relief under § 2255. See 28 U.S.C. §§ 2255. The district court may raise the affirmative

defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir.

1999).3

The one-year period is calculated from the latest of either (A) the date on which the

judgment of conviction became final; (B) the date on which an impediment to filing a § 2255

motion created by governmental action in violation of the Constitution or laws of the United

States is removed, if the movant was prevented from filing by such governmental action; (C) the

date on which the Supreme Court initially recognizes a new constitutional right and makes the

right retroactively applicable to cases on collateral review; or (D) the date on which the facts

supporting the claim became known or could have become known through the exercise of due

diligence. See id. § 2255.

Movant has alleged no impediment created by government action under subparagraph (B)

that prevented him from filing his federal petition. Nor does he base his petition on any new

constitutional right under subparagraph (C). With regard to subparagraph (D), the Court

determines that the facts supporting the claims raised in the instant petition for habeas relief

 

 Case 3:04-cv-02741-P Document 1 Filed 06/24/05 Page 3 of 5 PageID 3
4

became known or could have become known prior to the date Movant’s judgment of conviction

became final. Thus, the Court will calculate the one-year statute of limitations from the date

Movant’s conviction became final at the conclusion of direct review or upon the expiration of

the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A).

The Fifth Circuit dismissed Movant’s appeal as frivolous on December 14, 2000. 

Movant’s conviction became final ninety days later on March 14, 2001, the last day on which he

could have filed a petition for writ of certiorari to the United States Supreme Court. The oneyear period began to run on March 15, 2001, the day after the conviction became final, see

Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998), and expired on March 14, 2002. 

Movant did not file this § 2255 motion until December 19, 2004, two and one-half years after the

expiration of the one-year period. Therefore, Movant’s § 2255 motion is clearly untimely.

In response to the show cause order, Movant does not rely on equitable tolling. He argues

generally that the two and one-half year delay in filing this § 2255 motion was caused by his

lock down “in a SHU unit” with no time to research the law and access to legal material. 

(Movant’s Resp. to Show Cause at 1). Nevertheless, his pleadings, even when liberally

construed, do no present “rare and exceptional circumstances” warranting equitable tolling,

United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002), cert. denied, 539 U.S. 952 (2003), and

that Movant diligently pursued his rights, United States v. Patterson, 211 F.3d 927, 930 (5th Cir.

2000). To the extent Movant relies on his pro se status, the claim is meritless. “[N]either a

plaintiff’s unfamiliarity with the legal process nor [his] lack of representation during the

applicable filing period merits equitable tolling.” Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.

1999). Therefore, Movant is not entitled to equitable tolling of the limitation period.

 

 Case 3:04-cv-02741-P Document 1 Filed 06/24/05 Page 4 of 5 PageID 4
5

CONCLUSION:

IT IS THEREFORE ORDERED that Movant’s motion to vacate, set aside or correct the

sentence pursuant to 28 U.S.C. § 2255 (docket #407) be dismissed as barred by the one-year

limitation period.

IT IS FURTHER ORDERED that Movant’s motion to appoint counsel (docket # 410) be

denied as moot, and that his motion to be resentenced in accordance with Blakely/Booker

(docket #410) be denied as it is not cognizable in this post-conviction proceeding.

A copy of this order will be mailed to Movant Kevin LeRay Henderson, #33153-077,

BOP, FCI Oakdale, P.O. Box 5000, Oakdale, LA 71463.

Signed this 23 of June 2005. rd

_________________________________

JORGE A. SOLIS

UNITED STATES DISTRICT JUDGE

 

 Case 3:04-cv-02741-P Document 1 Filed 06/24/05 Page 5 of 5 PageID 5