                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

                                )
UNITED STATES OF AMERICA,       )
                                )
          v.                    ) Criminal Case No. 93-354 (EGS)
                                )
RAYFIELD WILSON,                )
                                )
               Defendant.       )
                                )

                        MEMORANDUM OPINION

     Pending before the Court is defendant Rayfield Wilson’s pro

se motion to vacate, set aside, or correct a sentence pursuant

to 28 U.S.C. § 2255 (“2255 motion” or “motion”). In 1994,

Mr. Wilson was sentenced in the Superior Court of the District

of Columbia (“Superior Court”) for second-degree murder,

voluntary manslaughter, and two other related charges. In 1995,

he pled guilty to a federal drug conspiracy charge, and the

federal district court ordered his federal sentence to run

consecutive to any other sentence being served. Mr. Wilson did

not appeal his federal conviction and sentence. More than twenty

years after his federal judgment of conviction became final,

Mr. Wilson now requests that his federal sentence be ordered to

run concurrently with his Superior Court sentence.

     After careful consideration of Mr. Wilson’s motion, the

government’s response, Mr. Wilson’s reply thereto, the entire
record herein, and the applicable law, the Court DENIES

Mr. Wilson’s motion.

  I.     Background

       In August 1992, Mr. Wilson was charged in the Superior

Court with two counts of first-degree murder while armed, in

violation of D.C. Code §§ 22–2401, –3202; one count of assault

with intent to kill while armed, in violation of D.C. Code

§§ 22–501, –3202; one count of possession of a firearm during a

crime of violence, in violation of D.C. Code § 22–3204(b); and

one count of carrying a pistol without a license, in violation

of D.C. Code § 22–3204(a). See United States v. Wilson, No. 1992

FEL 012920 (D.C. Super. Ct.); see also Wilson v. United States,

691 A.2d 1157, 1158 (D.C. 1997) (per curiam).

       On August 26, 1993, a jury found Mr. Wilson guilty of

second-degree murder while armed, voluntary manslaughter while

armed, possession of a firearm during a crime of violence, and

carrying a pistol without a license. See Wilson, 691 A.2d at

1158; see generally docket for Superior Court No. 1992 FEL

012920. At trial, three eyewitnesses testified that they saw

Mr. Wilson kill two brothers, Anthony and Willie Ellis (“Ellis

brothers”). Wilson, 691 A.2d at 1160. On February 4, 1994,

Judge Curtis E. von Kann of the Superior Court sentenced

Mr. Wilson to consecutive terms of fifteen years to life of

imprisonment for second-degree murder and thirteen years to life

                                  2
for voluntary manslaughter; and concurrent terms of forty to 120

months for carrying a pistol without a license and five to

fifteen years for possession of a firearm during a crime of

violence. Id. at 1158 n.2; see generally docket for Superior

Court No. 1992 FEL 012920. Mr. Wilson filed a timely appeal in

that case, and the District of Columbia Court of Appeals

affirmed his convictions on April 3, 1997. Wilson, 691 A.2d at

1158.

      On September 30, 1993, while awaiting sentencing in the

Superior Court case, Mr. Wilson was indicted on two federal drug

conspiracy charges in the United States District Court for the

District of Columbia. See Indictment, ECF No. 1 at 1-2. 1 It was

alleged that Mr. Wilson engaged in the conspiracy on or about

April 9, 1992. See id.; see also Superseding Information, ECF

No. 12 at 1. On February 27, 1995, Mr. Wilson pled guilty to one

count of conspiracy to distribute cocaine base, in violation of

18 U.S.C. § 371. See Plea Agreement, ECF No. 14 at 1. The charge

carried a “penalty of not more than five years and a fine of not

more than $10,000, or both, and a special assessment of $50[.]”

Id.




1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
                                 3
     On June 28, 1995, Judge Thomas Penfield Jackson 2 sentenced

Mr. Wilson to sixty months of incarceration, to run consecutive

to any other sentence being served, followed by three years of

supervised release and a special assessment of $50. See June 28,

1995 Docket Entry. The judgment of conviction was entered on

June 29, 1995. See Judgment and Commitment, ECF No. 18.

Mr. Wilson did not appeal his federal conviction and sentence to

the United States Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”). See generally docket for Crim. Action

No. 93-354.

     On November 20, 2017, Mr. Wilson filed the instant Section

2255 motion and his Motion for Leave to File and Memorandum of

Facts and Law in Support of His Petition Pursuant to 28 U.S.C.

§ 2255 (“Def.’s Memo. of Law & Facts”). See Def.’s Mot. to

Vacate, ECF No. 20 at 12; see also Def.’s Memo. of Law & Facts,

ECF No. 19 at 19. 3 At the time he filed his motion, Mr. Wilson



2
 This case was randomly reassigned to Judge Emmet G. Sullivan due
to Judge Jackson’s retirement in 2004.
3 The Court treats Mr. Wilson’s pro se motion as if it was filed

on November 20, 2017, which was the date he signed it. See
United States v. Peterson, 916 F. Supp. 2d 102, 104 (D.D.C.
2013) (“[A]bsent evidence to the contrary, the Court will assume
that [the petitioner] delivered his motion to prison authorities
on the date he signed it.”). On November 27, 2017, the Clerk’s
Office received his motion and memorandum. The Court granted him
leave to file both documents on December 11, 2017, and the
Clerk’s Office filed them on the Court’s electronic docket on
the same date.


                                4
was a federal prisoner at the United States Penitentiary

McCreary, which is located in Pine Knot, Kentucky and operated

by the Federal Bureau of Prisons (“BOP”). See Def.’s Mot. to

Vacate, ECF No. 20 at 1 (“Place of Confinement: USP McCreary”);

see also Def.’s Memo. of Law & Facts, ECF No. 19 at 19.

     On March 2, 2018, the Court ordered the government to

respond to Mr. Wilson’s motion, and the government filed its

opposition on April 19, 2018. See Gov’t’s Opp’n, ECF No. 23. On

April 25, 2018, Mr. Wilson filed a pro se motion for an

extension of time to respond to the government’s opposition and

his pro se reply. See Def.’s Mot. for Extension of Time,

ECF No. 24 at 1-2 (Mr. Wilson signed this motion on April 25,

2018); see also Def.’s Reply, ECF No. 24-1 (styled “Response to

the United States Motion in Opposition”). On May 30, 2018, the

Court granted Mr. Wilson leave to file a supplemental response

by no later than August 1, 2018 and informed him that if he did

not file a supplemental response, the Court would treat his

response at ECF No. 24-1 as his only response to the

government’s opposition. He did not file a supplemental

response. See generally docket for Crim. Action No. 93-354.

Mr. Wilson’s motion is now ripe and ready for the Court’s

adjudication.




                                5
  II.   Analysis

     Under 28 U.S.C. § 2255, a “prisoner in custody under

sentence of a court” may “move the court which imposed the

sentence to vacate, set aside, or correct the sentence” if the

prisoner claims “that the sentence was imposed in violation of

the Constitution or laws of the United States, or that the court

was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

     Mr. Wilson argues that his due process rights were violated

when the federal district court “erroneously” ordered his

federal sentence to run consecutive to his Superior Court

sentence. See Def.’s Mot. to Vacate, ECF No. 20 at 4. He urges

this Court to follow the Supreme Court’s ruling in Setser v.

United States, 566 U.S. 231 (2012) and Amendments 776 and 787 to

the United States Sentencing Guidelines, promulgated after

Setser, to correct his federal consecutive sentence and impose a

concurrent sentence. See Def.’s Memo. of Law & Facts, ECF No. 19

at 6-7. Mr. Wilson acknowledges a federal sentencing judge’s

authority to decide whether a federal sentence runs

consecutively to or concurrently with other sentences that have

already been imposed in state proceedings. See id. at 8-10

(citing 18 U.S.C. § 3584(a); Setser, 566 U.S. at 236).

Nevertheless, Mr. Wilson argues that his “distinct crimes” in

                                6
the federal and Superior Court cases were “relevant conduct to

each other” under the United States Sentencing Guidelines; thus,

he argues that his federal sentence should run concurrently with

his Superior Court sentence. See id. at 3, 19.

     As an initial matter, the government argues that

Mr. Wilson’s motion is time-barred because he filed it outside

of the one-year grace period that Congress imposed on Section

2255 motions with the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). See Gov’t’s

Opp’n, ECF No. 23 at 3-4 (citing Mayle v. Felix, 545 U.S. 644,

654 (2005)). The government contends that Amendments 776 and

787, incorporated into U.S.S.G. § 5G1.3, generally provide that

a criminal defendant “subject to an undischarged term of

imprisonment or an anticipated state term of imprisonment shall

be sentenced to concurrent terms of imprisonment if the two

offenses involve ‘relevant conduct.’” Id. at 6 n.3. According to

the government, these amendments do not apply to Mr. Wilson’s

federal conviction because both amendments do not apply

retroactively. Id. The government further maintains that

Mr. Wilson’s federal and Superior Court offenses were not

related or “relevant conduct” under the Sentencing Guidelines.

See id. at 6-7. The government points out that Mr. Wilson sold

cocaine to a confidential informant and undercover police

officer on April 9, 1992 in the federal drug conspiracy case,

                                7
and that he was convicted of killing the Ellis brothers on

December 12, 1992 in the Superior Court case, conduct which was

not included in his federal drug conspiracy case. See id. at 7.

     The government also argues that Mr. Wilson’s additional

arguments lack merit for two main reasons. First, his challenge

to the federal sentence is not cognizable under Section 2255

because, inter alia, his federal sentence did not exceed the

statutory maximum penalty under 18 U.S.C. § 371. See id. at 4-5.

Second, the Supreme Court in Setser recognized that federal

courts “have discretion to select whether the sentences they

impose will run concurrently or consecutively with respect to

other sentences that they impose, or that have been imposed in

other proceedings, including state proceedings.” Id. at 6

(quoting Setser, 566 U.S. at 236). The government points out

that the relevant language in 18 U.S.C. § 3584 provides that “if

a term of imprisonment is imposed on a defendant who is already

subject to an undischarged term of imprisonment, the terms may

run concurrently or consecutively[.]” Id. at 5 (quoting 18

U.S.C. § 3584(a)).

     Before the Court can reach the merits of Mr. Wilson’s

motion, the Court must first determine whether he is a “prisoner

in custody under sentence of a court” within the meaning of

Section 2255. Next, the Court must consider whether Mr. Wilson’s

motion is timed-barred.

                                8
       A. Mr. Wilson Is “In Custody” for Purposes of
          28 U.S.C. § 2255

     Mr. Wilson argues that his motion is timely because he has

not yet begun serving his federal sentence; thus, he is “not in

custody.” See Def.’s Mot. to Vacate, ECF No. 20 at 10. The

government does not dispute that Mr. Wilson is not currently

serving his federal sentence, but the government argues that

this fact is “immaterial” because his motion is untimely. See

Gov’t’s Opp’n, ECF No. 23 at 4. The government points out that

Mr. Wilson will begin serving his federal sentence after

completing his Superior Court sentence. See id. at 2. The

government notes that the BOP lodged a detainer against him on

August 1, 2001 based upon his federal conviction, and that the

United States Parole Commission lodged a second detainer against

him on August 29, 2001 for an alleged violation of parole. See

id. at 2, 2 n.1.

     “A prisoner is in custody for the purposes of § 2255 when

he is incarcerated in either federal or state prison, provided

that a federal court has sentenced him.” Ospina v. United

States, 386 F.3d 750, 752 (6th Cir. 2004). The Rules Governing

Section 2255 Proceedings cover Section 2255 motions filed in a

federal district court by “a person in custody under a judgment

of a state court” and “subject to future custody under a

judgment of the district court, who seeks a determination that .


                                9
. . future custody under a judgment of the district court would

violate the Constitution or laws of the United States[.]” Rule

1(b)(1), 28 U.S.C. following § 2255.

     It is undisputed that Mr. Wilson is a federal prisoner

currently serving his Superior Court sentence and challenging

his impending federal sentence as a violation of his due process

rights. See Def.’s Mot. to Vacate, ECF No. 20 at 1 (listing the

“USP McCreary” as his “Place of Confinement”), 4 (arguing his

“sentence [is] in violation of due process of law”); see also

Federal Bureau of Prisons, Inmate Locator,

https://www.bop.gov/inmateloc/ (last visited January 23, 2019)

(showing that “Rayfield Wilson” is located at “McCreary USP”).

Because he is incarcerated in a federal prison and the federal

district court has sentenced him, the Court finds that

Mr. Wilson is “in custody” within the meaning of Section 2255.

See Ospina, 386 F.3d at 752.

       B. Mr. Wilson’s Motion Is Time-Barred Since He Filed It
          After the Filing Deadline of April 24, 1997

     The Court next considers if Mr. Wilson’s motion is time-

barred. Mr. Wilson acknowledges that the AEDPA “implemented time

restrictions on the filing of § 2255 motions[.]” See Def.’s

Reply, ECF No. 24-1 at 4. Relying on D.C. Circuit precedent, the

government argues that Mr. Wilson had until April 24, 1997 to

file his motion because his conviction became final in 1995. See


                               10
Gov’t’s Opp’n., ECF No. 23 at 4 (citing United States v. Cicero,

214 F.3d 199, 202 (D.C. Cir. 2000)). The government argues that

Mr. Wilson’s motion is “too late” because he waited until 2017

to file it. Id.

     Prior to 1996, “a prisoner could challenge his conviction

or sentence as a violation of the Constitution of the United

States by filing a motion under 28 U.S.C. § 2255 at almost any

time.” Cicero, 214 F.3d at 200. “Effective April 24, 1996, the

Antiterrorism and Effective Death Penalty Act (AEDPA) amended §

2255 to impose a 1-year period of limitation on motions brought

under [Section 2255].” United States v. Saro, 252 F.3d 449, 451

(D.C. Cir. 2001) (internal quotation marks omitted).

“[P]risoners . . . whose convictions became final before [the]

AEDPA’s effective date, had a one-year grace period from that

date in which to file a § 2255 motion-yielding a filing deadline

of April 24, 1997.” Id. (citing Cicero, 214 F.3d at 202).

     The operative date from which the limitation period is

measured will be the latest of the following four enumerated

circumstances:

          (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;

                               11
          (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.

18 U.S.C. § 2255(f). Generally, “the operative date . . . will

be the one identified in [Section 2255(f)(1)]: the date on which

the judgment of conviction becomes final.” Dodd v. United

States, 545 U.S. 353, 357 (2005) (citations and internal

quotation marks omitted). “But later filings are permitted where

subparagraphs (2)-(4) apply.” Id.

     None of the circumstances identified in subparagraphs (2)

through (4) apply to Mr. Wilson’s situation. Liberally

construing his pro se motion, Mr. Wilson’s reliance on the

Supreme Court’s decision in Setser, which was decided on March

28, 2012, does not allow his motion to fall under Section

2255(f)(3). See generally Def.’s Memo. of Law & Facts,

ECF No. 19; Def.’s Reply, ECF No. 24-1. In Setser, the Supreme

Court addressed the issue of whether a federal district judge or

the BOP should decide if the defendant’s federal sentence should

run consecutively to or concurrently with his anticipated state

sentences. 566 U.S. at 234-35. The Supreme Court held that a

federal district court retained discretion to order that a

                               12
federal sentence run consecutively or concurrently “where a

federal judge anticipates a state sentence that has not yet been

imposed.” Id. at 236. The present case is significantly

different from Setser because the federal district court

sentenced Mr. Wilson in 1995 after Judge von Kann imposed his

sentence in 1994 for second-degree murder, voluntary

manslaughter, and two other related charges. See Judgment and

Commitment, ECF No. 18.

     Furthermore, Mr. Wilson’s motion does not fall under

Section 2255(f)(3). The Supreme Court in Setser did not announce

a new substantive rule that applies retroactively to cases on

collateral review. See Smith v. United States, No. CIV. AW-13-

796, 2013 WL 4605406, at *3-4 (D. Md. Aug. 28, 2013) (rejecting

petitioner’s argument that Setser established a new substantive

rule that applies retroactively within the guidelines of

§ 2255(f)(3)); cf. United States v. Hopkins, No. 1:06-CR-0064,

2013 WL 2147793, at *5 (M.D. Pa. May 16, 2013) (concluding that

Setser did not “constitute an intervening change in the law

necessitating reconsideration of [petitioner’s] sentence[.]”),

aff’d, 568 F. App’x 143 (3d Cir. 2014). Thus, Mr. Wilson’s

motion must fall under Section 2255(f)(1)—the date on which the

judgment of conviction became final. See 18 U.S.C. § 2255(f)(1).

     Mr. Wilson’s federal conviction became final on July 10,

1995 because he did not file a notice of appeal within ten days

                               13
after the entry of the judgment on June 29, 1995. 4 See United

States v. Ingram, 908 F. Supp. 2d 1, 4 (D.D.C. 2012) (“Where, as

here, a federal criminal defendant does not appeal to the court

of appeals, the judgment becomes final upon the expiration of

the period in which the defendant could have appealed to the

court of appeals.” (citations and internal quotation marks

omitted)).

     A defendant, like Mr. Wilson, whose conviction became final

before the enactment of the AEDPA had until April 24, 1997 to

file the Section 2255 motion within the one-year grace period.

See, e.g., Saro, 252 F.3d at 451; Cicero, 214 F.3d at 202.

Mr. Wilson filed his motion on November 20, 2017, more than

twenty years after the filing deadline. Accordingly, the Court

finds that Mr. Wilson’s motion is time-barred because it was

filed outside of the one-year grace period.

       C. The Equitable Tolling Doctrine and the Actual
          Innocence Exception Do Not Apply to Mr. Wilson’s
          Motion

     Mr. Wilson does not dispute that his motion was filed after

the one-year grace period expired on April 24, 1997, but he

argues that the Court should consider his motion because his

federal consecutive sentence constitutes a “miscarriage of


4Under the then-applicable version of the Federal Rules of
Appellate Procedure, a criminal defendant had to file a notice
of appeal in the district court within ten days after the entry
of the judgment. See Fed. R. App. P. 4(b), 26(a) (1995).
                                14
justice.” See Def.’s Reply, ECF No. 24-1 at 4. He argues that

the miscarriage of justice exception applies here because his

federal consecutive sentence “for all intents and purposes

constitutes double jeopardy[.]” Id. at 5. The government did not

address this exception in its opposition.

     A court may consider an untimely Section 2255 motion if the

defendant establishes: (1) grounds for equitable tolling, or

(2) a credible showing of actual innocence. E.g., United States

v. Tabi, 264 F. Supp. 3d 15, 16 (D.D.C. 2017); Peterson,

916 F. Supp. 2d at 106. Here, Mr. Wilson does not allege any

facts that would support the application of the equitable

tolling doctrine in this case. See generally Def.’s Memo. of Law

& Facts, ECF No. 19; Def.’s Mot. to Vacate, ECF No. 20; Def.’s

Reply, ECF No. 24-1. Equitable tolling requires a defendant to

establish: (1) “he has been pursuing his rights diligently,” and

(2) “some extraordinary circumstance stood in his way.” United

States v. McDade, 699 F.3d 499, 504 (D.C. Cir. 2012) (quoting

Holland v. Florida, 560 U.S. 631, 649 (2010)). Here, Mr. Wilson

does not allege any facts to establish that he has been

diligently pursuing his rights since his federal conviction in

1995, and he fails to point to any extraordinary circumstances

which would allow the Court to equitably toll the filing

deadline of April 24, 1997. See generally Def.’s Memo. of Law &



                               15
Facts, ECF No. 19; Def.’s Mot. to Vacate, ECF No. 20; Def.’s

Reply, ECF No. 24-1.

     Mr. Wilson relies on McQuiggin v. Perkins, 569 U.S. 383

(2013) to support his argument that his claims are not time-

barred. See id. at 4-5. In McQuiggin, the Supreme Court

instructed that “[t]he miscarriage of justice exception . . .

applies to a severely confined category: cases in which new

evidence shows it is more likely than not that no reasonable

juror would have convicted the petitioner.” 569 U.S. at 394-95

(citation and internal quotation marks omitted). The Supreme

Court held that “actual innocence, if proved, serves as a

gateway through which a petitioner may pass whether the

impediment is a procedural bar . . . or . . . expiration of the

statute of limitations.” Id. at 386.

     Here, Mr. Wilson fails to point to any newly-discovered

evidence or facts to overcome the statute of limitations. He

does not even assert his actual innocence of the federal crime

to which he pled guilty. See generally Def.’s Memo. of Law &

Facts, ECF No. 19; Def.’s Mot. to Vacate, ECF No. 20; Def.’s

Reply, ECF No. 24-1. Because he fails to allege any facts to

support the application of the equitable tolling doctrine or

that the actual innocence exception is warranted, the Court is

not persuaded that Mr. Wilson’s untimely motion should be

considered.

                               16
     Having found that he filed the motion more than twenty

years after the one-year grace period expired on April 24, 1997,

the Court concludes that Mr. Wilson is procedurally barred from

relief under Section 2255. The Court cannot reach the merits of

Mr. Wilson’s motion because it is time-barred. See, e.g., Tabi,

264 F. Supp. 3d at 17 (concluding that “[t]he Court need not

reach the merits” of petitioner’s claim because his motion was

untimely); United States v. Thompson, 587 F. Supp. 2d 121, 124

n.3 (D.D.C. 2008) (“Since petitioner's motion is time-barred,

the Court need not reach the merits of his claims.”).

     The Court need not hold an evidentiary hearing before

denying his motion on procedural grounds. See, e.g., United

States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (“A judge

need not conduct an evidentiary hearing before denying a

petition for relief under § 2255 when ‘the motion and the files

and records of the case conclusively show that the prisoner is

entitled to no relief.’” (quoting 28 U.S.C. § 2255(b)); United

States v. Allen, 241 F. Supp. 3d 101, 106 (D.D.C. 2017) (denying

petitioner’s request for an evidentiary hearing because his

untimely motion was denied on procedural grounds).

  III. Conclusion

     For the foregoing reasons, the Court DENIES Mr. Wilson’s

motion to vacate, set aside, or correct his sentence pursuant to

28 U.S.C. § 2255. The Court therefore directs the Clerk of Court

                               17
to CLOSE civil case number 17-cv-2671. An appropriate Order

accompanies this Memorandum Opinion.

     SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          February 7, 2019




                               18
