United States District Court, D. Minnesota
Carlous Lindell Daily, pro se.
Michael L. Cheever, Assistant United States Attorney, for
ORDER DENYING § 2255 MOTIONS TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
R. TUNHEIM Chief Judge United States District Court
Carlous Lindell Daily is serving a 420-month term of
imprisonment for bank robbery offenses. This Court
resentenced Daily following a prior motion under 28 U.S.C.
§ 2255, which prompted the Court's discovery of an
error in Daily's initial sentencing. Daily has now filed
several additional § 2255 motions and supplemental
memoranda challenging both of his prior sentencings. The
United States moves to dismiss several of Daily's
motions. Because Daily has not shown that a new rule of
constitutional law applies retroactively to alter his
sentence or that he suffered ineffective assistance of
counsel, the Court will deny Daily's motions.
10, 2005, a jury found Daily guilty of one count of
conspiring to commit bank robbery, one count of bank robbery,
and one count of using a firearm during a crime of violence.
(Jury Verdict, May 10, 2005, Docket No. 150.) The jury
acquitted Daily of an additional count of bank robbery and an
additional count of using a firearm during a crime of
violence. (Id.) On October 3, 2005, Daily was
sentenced to a total of 444 months imprisonment - the bottom
of the guideline range determined at sentencing. (J. in
Criminal Case (“2005 J.”), Oct. 13, 2005, Docket
No. 165.) The Eighth Circuit affirmed Daily's conviction
and the Supreme Court denied Daily's petition for writ of
certiorari. United States v. Daily, 488 F.3d 796
(8th Cir. 2007), cert. denied, 552 U.S.
January 28, 2009, Daily filed a motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255.
(Mot. to Vacate, Jan. 28, 2009, Docket No. 265.) In reviewing
the motion, the Court noticed an error in the sentencing
guideline calculation applied at Daily's sentencing, and
after requesting briefing from the parties, found Daily was
entitled to relief based on his counsel's failure to
object to the erroneous guideline range. (Mem. Op. &
Order Den. Mot. to Vacate (“2010 Order”) at 16,
Apr. 23, 2010, Docket No. 274; Mem. Op. & Order Granting
Habeas Relief, Sept. 7, 2011, Docket No. 294.) On August 11,
2011, considering the corrected guideline range, the Court
resentenced Daily to a total term of 420 months imprisonment.
(Am. J. in Criminal Case (“Am. J.”), Sept. 7,
2011, Docket No. 295.) The Court denied Daily's motion to
vacate in all other respects. (2010 Order at 7-15; Order Den.
Pro Se Mot., Sept. 7, 2011, Docket No. 293.) The Eighth
Circuit upheld the new sentence. United States v.
Daily, 703 F.3d 451 (8th Cir. 2013).
2014, Daily again attempted to file a § 2255 motion. The
Clerk of Court sent Daily a letter explaining that the
application appeared to be a successive petition under §
2255, and that Daily needed to obtain pre-authorization from
the Eighth Circuit prior to filing. (Letter from Clerk's
Office, Apr. 8, 2014, Docket No. 317.) On April 28, 2014,
Daily responded by filing a motion to amend judgment pursuant
to Rule 59(e), (Mot. to Am. J., Apr. 28, 2014, Docket No.
318), which the Court denied on May 28, 2014, (Order, May 28,
2014, Docket No. 319.) Daily also filed a motion for a
certificate of appealability, (Req. for Issuance of
Certificate of Appealability, Sept. 8, 2014, Docket No. 321),
which the Court denied, (Order, Oct. 20, 2014, Docket No.
appealed the Court's denial of his motion to amend
judgment. (Notice of Appeal, Sept. 8, 2014, Docket No. 320.)
The Eighth Circuit construed the appeal as a petition for a
writ of mandamus, which it granted, and directed the Court
“to rule on Petitioner Daily's § 2255
motion.” (J. of USCA, Nov. 10, 2014, Docket No. 327.)
The Eighth Circuit denied the United States' petition for
refiled the attempted 2014 motion with the Court on October
26, 2015. (Mot. to Vacate (“2014 Mot.”), Oct. 26,
2015, Docket No. 331.) Daily also filed a supplemental
petition on January 4, 2016, (Suppl. Mot. to Vacate, Jan. 4.
2016, Docket No. 337), and two additional supplemental
motions or memoranda in June and August 2016, (Suppl. Mot.
& Mem. of Law, June 20, 2016, Docket No. 343; Pet.'s
Req. for Enlargement of Time to File Suppl. Mot., Aug. 29,
2016, Docket No. 345). The United States moved to dismiss two
of these supplemental filings. (Government's Mot. to
Dismiss, Jan. 6, 2016, Docket No. 339; Government's Mot.
to Dismiss, June 21, 2016, Docket No. 344.) The Court will
now consider these pending motions.
STANDARD OF REVIEW
2255 allows a federal prisoner a limited opportunity to seek
post-conviction relief on the grounds 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). “Relief under 28 U.S.C. § 2255 is
reserved for transgressions of constitutional rights and for
narrow range of injuries that could not have been raised on
direct appeal and, if uncorrected, would result in a complete
miscarriage of justice.” Walking Eagle v. United
States, 742 F.3d 1079, 1081-82 (8th Cir.
2014) (quoting United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996)).
the United States initially challenged the Court's
jurisdiction to hear Daily's petition, arguing that it
was second and successive under 28 U.S.C. § 2255(h).
However, the United States now acknowledges that Daily's
motion is not second or successive because it follows his
resentencing, which constitutes a new judgment.
(Government's Mem. in Opp'n to Def.'s 2016 §
2255 Mot. at 1-2, June 16, 2016, Docket No. 342); see
also Magwood v. Patterson, 561 U.S. 320, 341-42 (2010)
(“[W]here . . . there is a ‘new judgment
intervening between the two habeas petitions, ' an
application challenging the resulting new judgment is not
‘second or successive' at all.” (quoting
Burton v. Stewart, 549 U.S. 147, 156 (2007))).
STATUTE OF LIMITATIONS
United States argues that Daily's § 2255 motion is
barred by the one-year statute of limitations. 28 U.S.C.
§ 2255(f). In relevant part, § 2255(f) provides
that the statute of limitations begins to run on “the
date on which the judgment of conviction becomes
final.” “[A] judgment of conviction becomes final
when the time expires for filing a petition for certiorari
contesting the appellate court's affirmation of the
conviction.” Clay v. United States, 537 U.S.
522, 525 (2003). Thus, Daily's statute of limitations
began to run on April 15, 2013, which is ninety days after
the Eighth Circuit's decision, dated January 15, 2013,
affirming his new sentence. See id.; Supreme Court
Rule 13.1 (requiring a petition for writ of certiorari be
filed within ninety days after entry of judgment). Daily
submitted his 2014 motion on April 7, 2014. (See
Letter from Clerk's Office; 2014 Mot. (showing initial
date stamp of April 7, 2014).) Thus, Daily's 2014 motion
was timely because he submitted it within a year after his
second judgment of conviction became final.
because Daily filed his additional § 2255 motions and
supporting memoranda while his prior § 2255 motion was
pending, the Court construes them as motions to amend, and
they are not barred as second or successive petitions.
United States v. Sellner, 773 F.3d 927, 931-32
(8th Cir. 2014); see also Fed. R. Civ. P.
15(a)(2) (stating that leave to file a motion to amend should
be “freely ...