UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal No. 03-282 (JDB)
WILLIE LAWSON, (Civil Action No. 08-0655)
Defendant/Petitioner.

MEMORANDUM OPINION

Petitioner Willie Lawson has filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255, alleging that his conviction under 18 U.S.C. § 924(c) for
brandishing a firearm during a crime of violence violates due process because that statute does
not create a criminal offense. He further contends that this Court improperly allowed the
prosecution to introduce Rule 404(b) evidence, that the government introduced perjured
eyewitness testimony, that he received ineffective assistance of counsel, and that his sentence is
based on an incorrect criminal history score. ln response, the government has moved to dismiss
his § 2255 motion as time-barred. Upon a carefiil review of the petitioner's motion and
accompanying papers,’ as well as the govemment's motion to dismiss and reply, the Court

concludes that a hearing is unnecessary and that the petitioner's motion should be denied.

' Petitioner's allegations are set forth in a series of submissions, all of which the Court considers
in resolving the pending motions. ln addition to his § 2255 motion (ECF #143), he has submitted
the following: an affidavit dated April 15 , 2008 (ECF # 142), a letter dated May l, 2008 (ECF
#144), and a series of responses to the govemment's filings (ECF #146, ECF #149, ECF #l52).
For ease of reference, the Court will cite to petitioner's filings by their ECF document number,
and will refer to the govemment's motion to dismiss as "Gov't Mot."

BACKGROUND

Lawson was convicted of aggravated bank robbery and brandishing a firearm during a
crime of violence on December 15, 2003. §§ generally United States v. Lawson, 410 F.?>d 735,
738-39 (D.C. Cir. 2005). He was then sentenced to consecutive terms of imprisonment of 140
months for bank robbery and 84 months for brandishing a firearm, followed by a five-year term
of supervised release and a special assessment of $200.00. S_e_e Judgment (filed May 12, 2004).
Lawson appealed his conviction on May 21 , 2004, alleging that two identifications were
inadmissible, the search of his car violated his Fourth Amendment rights, and that the
government should have been prohibited from introducing evidence of other bank robberies.
L.Lv_spgl 410 F.3d at 739. The D.C. Circuit affirmed his conviction, holding that the
identifications were properly admitted, the search of the car was lawful because the officers had
probable cause, and this Court did not abuse its discretion in concluding that the probative value
of the other bank robbery evidence was not substantially outweighed by the danger of unfair
prejudice. I_d_. at 739-42. Lawson then sought review in the Supreme Court, which denied his
petition for writ of certiorari on November 28, 2005. Lawson v. United States, 546 U.S. 1055
(2005).

Through filings dated April 15 and 17, 2008, over two years and four months after the
Supreme Court denied the petition for writ of certiorari, Lawson sought relief from his conviction
and sentence pursuant to 28 U.S.C. § 2255. § ECF #l42, #143. ln his numerous court filings,
he raises five issues. His primary argument is that 18 U.S.C. § 924 violates his due process
rights because the statute, he claims, is a penal code but is being used to sentence him to a
criminal offense. He also contends that his conviction and sentence are unlawful based on the
following allegations: (1) the govemment introduced perjured testimony when a key identity

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witness fabricated her testimony;z (2) a weapon was improperly admitted into evidence at trial in
violation of F ederal Rule of Evidence 404(b) and, furthermore, he never possessed or used it for
a bank robbery; (3) he received ineffective assistance of counsel during the pretrial phase because
his court-appointed attorneys refused to interview certain witnesses or file motions; (4) he
received ineffective assistance of counsel during sentencing because his lawyer did not raise
objections petitioner wished to pursue; and (5) his criminal history score was improperly
increased by three points based on convictions in Virginia and Maryland that should have been
treated instead as "relevant conduct." §§ ECF # 142, 143, 152.

STANDARD OF REVIEW

A court may deny a § 2255 motion without holding an evidentiary hearing when "the
motion and the files and records of the case conclusively show that the prisoner is entitled to no
relief`." 28 U.S.C. § 2255(b). The decision whether to hold a hearing is committed to the district
court's discretion, particularly when, as here, the judge who is considering the § 2255 motion
"also presided over the trial in which the petitioner claims to have been prejudiced." l
States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996). Only where the § 2255 motion raises
"detailed and specific factual allegations whose resolution requires information outside of the
record or the judge's personal knowledge or recollection must a hearing be held." United States
v. Pollard, 959 F.2d 1011, 1030-31 (D.C. Cir. 1992) (internal citations omitted).

ANALYSIS
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that a one-year

limitation period applies to any motion for relief under § 2255, with certain limited exceptions.

2 This Court dismissed that claim on May 13, 2008, because petitioner had "provide[d] no
explanation or evidentiary support" in support of his conclusory allegation that the witness had
lied. § Order at 1 (filed May 13, 2008).

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28 U.S.C. § 2255(f`). The government contends that petitioner's motion is time-barred under this
provision because he filed his motion after the one-year limitation period expired. § Gov't's
Mot. at 4-5. The Court has reviewed the record and agrees with the govemment that the one-year
statute of limitations contained in § 2255 bars petitioner’s motion.
The AEDPA provides that a motion for relief pursuant to § 2255 must be filed within one

year from the later 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

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

governmental action;

(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.

28 U.S.C. § 2255(f`).

Here, § 2255(f)(l) provides the operative date for calculating the expiration of the filing
period for petitioner because none of the other triggers are applicable -- that is, petitioner does
not argue (nor does the record indicate) that the government created an impediment to his filing a
§ 2255 motion, that the Supreme Court has newly recognized a right asserted, or that relevant
facts supporting his claim are only now discoverable. Under § 2255(f)(l), petitioner is required
to file his motion within one year of the date the judgment of conviction becomes final. A
judgment of conviction is final when the Supreme Court "affirms a conviction on the merits on
direct review or denies a petition for a writ of certiorari, or when the time for filling a certiorari
petition expires." Clay v. United States, 537 U.S. 522, 527 (2003). Hence, petitioner's judgment

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of conviction became final when the Supreme Court denied his petition for writ of certiorari on
November 28, 2005. § Lawson v. United States, 546 U.S. 1055 (2005). Petitioner filed his

§ 2255 motion on April 15, 2008 -- more than two years and four months after final judgment --
thereby exceeding the statute of limitations by more than sixteen months.

The D.C. Circuit has not decided whether equitable tolling of the AEDPA statute of
limitations is possible, se_:§, gg;, United States v. Pollard, 416 F.3d 48, 56 n.l (D.C. Cir. 2005);
United States v. Cicero, 214 F.3d 199, 203 (D.C. Cir. 2000), but even assuming that is it
permissible, it would be inappropriate under the circumstances of this case. Petitioner has not
alleged, nor does the record indicate, that he made a good-faith effort to file his motion within the
one-year statute of limitations, or that circumstances beyond his control prevented him from
complying with the statutory deadline. §§ ph 416 F.3d at 56. Petitioner makes passing
references to his pro se status, but a failure to meet the statutory deadline due to pro se
representation is not a circumstance in which it is appropriate to toll the statute of limitations.
§e_e Fears v. United States, Civil Action No. 06-0086, 2006 WL 763080, at *4 (D.D.C. Mar. 24,
2006). Furthermore, petitioner did not exceed the deadline by a brief period of time that could be
attributed to the sluggishness of prison's mail service. _S_ee United States v. Carr, Civil Action
No. 05-2055, 2006 WL 401818, at *1 n.2 (D.D.C. Feb. 21, 2006). Rather, he exceeded the
statutory deadline by well over a year. Therefore, the motion is time-barred.

The vast majority of petitioner's claims are barred for a second independent reason as well
-- the absence of any "cause" for failing to raise the alleged errors during the direct appeal from
his conviction. "Where a defendant has procedurally defaulted a claim by failing to raise it on

direct review, the claim may be raised in habeas only if the defendant can first demonstrate

'cause’ and actual 'prejudice' . . . . "3 Bousley v. United States, 523 U.S. 614, 622 (1998) (intemal
citations omitted). Cause for failure to bring a claim on direct appeal "must ordinarily turn on
whether the prisoner can show that some objective factor external to the defense impeded
counsel's efforts to comply with the [] procedural rule" and bring the claims on direct appeal.

Murray v. Carrier, 477 U.S. 478, 488 (1986). Petitioner has not made such a showing.
CONCLUSION

F or the foregoing reasons, the Court will grant the government's motion to dismiss and
deny petitioner's motion to vacate, set aside, or correct sentence under § 2255. A separate order

has been issued on this date.

/s/
JOHN D. BATES
United States District Judge

Dated: April 6, 2009

Copies to:

Willie Lawson T. Anthony Quinn
Reg. No. 45609-083 U.S. Attorney's Office
U.S.P. Big Sandy 555 Fourth St., NW
P.O. Box 2068 Washington, DC 20001
Inez, KY 41224

3 Although petitioner's ineffective assistance of counsel claims would not be barred under
the cause and prejudice standard (Le Massaro v. United States, 538 U.S. 500, 504 (2003) ("an
ineffective-assistance-0f-counsel claim may be brought . . . under § 2255 , whether or not
petitioner could have raised the claim on direct appeal")), it remains time-barred for the reasons
discussed above.

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