UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 93-0097(BAH)

ERIC A. HICKS, Chief Judge Beryl A. Howell

Defendant.

MEMORANDUM OPINION AND ORDER

In 1994, the defendant Eric Hicks was sentenced to two concurrent terms of life

imprisonment, without possibility of parole, after his conviction at trial of conspiring to possess

with intent to distribute cocaine base and to participate in a Racketeering Influenced and Corrupt

Organization (“RICO”), and three counts of distributing cocaine base, in violation of

(d) and

and 846, stemming from his participation in the “First Street

Crew,” which, from early 1988 until March 1993, sold crack cocaine and engaged in “violent

activities.” United States v. White,

(D.C. Cir. 1997). Over the last twenty-

three years, the defendant has unsuccessfully sought relief, pursuant to

, and

again seeks to vacate, set aside, or correct his sentence in light of a new, previously unavailable

rule of constitutional law, announced by the Supreme Court in Graham v. Florida,

(2010) (holding that “[t]he Constitution prohibits the imposition of a life without parole

sentence on a juvenile offender who did not commit homicide”), Miller v. Alabama,

(2012) (extending Graham to hold that “that mandatory life without parole for those

under the age of 18 at the time of their crimes violates the Eighth Amendment”), and

Montgomery v. Louisiana,

(2016) (holding that “Miller announced a

substantive rule that is retroactive in cases on collateral review”). Def.’s § 2255 Mot. Vacate

1 (“Def.’s Mot.”) ¶¶ 13, 18, ECF No. 640; Def.’s Mem. Supp. § 2255 Mot. (“Def.’s Mem.”) at 5–

6, ECF No. 640-1.1 The defendant argues that, under Graham and Miller, which prohibit

mandatory sentences of life without parole for crimes committed by juveniles, his sentence

violates the Eighth Amendment’s prohibition against cruel and unusual punishment because his

five-year-participation in the drug and RICO conspiracies, for which he stands convicted, began

one day before his eighteenth birthday. As explained below, this motion is untimely and, even if

timely, would be denied as meritless.2

I. LEGAL STANDARD

The petitioner bringing a

motion bears the burden of establishing, by a

preponderance of evidence, a denial of constitutional rights. Daniels v. United States,

, 381–82 (2001); United States v. Simpson,

(D.C. Cir. 1973) (concluding

that, in § 2255 action to set aside plea of guilty, “the preponderance of evidence supports the

judgment rejecting petitioner’s claim”). Any § 2255 motion is subject to “the strict time limits

that Congress has placed on prisoners seeking collateral relief.” United States v. Hicks,

(D.C. Cir. 2002). When claiming relief under a new rule of constitutional law, the §

2255 motion must be filed within one year from “the date on which the right asserted was

initially recognized by the Supreme Court.”

(f)(3). A right is “initially

recognized” on “the date on which [the Supreme] Court ‘initially recognized’ the right asserted

in an applicant’s § 2255 motion,” not “the date on which the right is ‘made retroactiv[e].’” Dodd

v. United States,

, 354–55 (2005) (alteration in original); see also In re Williams,

1 The defendant simultaneously filed a separate § 2255 motion seeking a sentence reduction, based on Johnson v. United States,

(2015). Def.’s § 2255 Mot. Vacate, ECF No. 641. That motion was denied. Mem. Op. and Order, dated Nov. 16, 2016, ECF No. 642; see also Mem. Op. and Order, dated June 14, 2017, ECF No. 658 (denying motion for reconsideration). 2 In granting petitioner leave to file the instant successive § 2255 motion, the D.C. Circuit expressed “no opinion as to the timeliness of [the defendant’s] § 2255 motion or the merits of his claims.” In re Hicks, USCA No. 16-3030,

at *1, ECF No. 638 (D.C. Cir. Sept 7, 2016).

2

(D.C. Cir. 2014) (holding the date on which case finding a new rule of

constitutional law “was decided” is “the date on which the right asserted was initially recognized

by the Supreme Court”). Though this statutory bar has “the potential for harsh results in some

cases,” the courts are “not free to rewrite the statute that Congress has enacted.” Dodd,

.

II. DISCUSSION

The timeliness and merits, or lack thereof, of the defendant’s § 2255 motion are

addressed seriatim below.

A. § 2255 MOTION IS UNTIMELY

The defendant filed the instant § 2255 motion, on September 7, 2016, within one year of

Montgomery v. Louisiana,

(2016), which applied retroactively the rules

announced in Graham and Miller. See Def.’s Mot. The date on which Montgomery was decided

is not, however, when the new constitutional rule was “initially recognized.” Dodd,

; In re White,

at *1 (D.C. Cir. Feb. 6, 2017). Thus, to the extent

that the defendant contends that his § 2255 petition is timely because it “has been filed whin [sic]

one year of . . . Montgomery,” Def.’s Mot ¶ 18, he is incorrect. To the contrary, the defendant

filed the instant motion more than five years after Graham was decided and nearly three years

after Miller was decided. Thus, the deadline for a timely petition by the defendant was, at the

latest, in June 2013, one year after Miller, rendering his motion untimely.

The defendant nonetheless argues in his reply that the one-year statute of limitations

should be subject to equitable tolling. Def.’s Reply to Gov’t’s Opp’n to § 2255 Mot. (“Def.’s

Reply”) at 2, ECF No. 671.3 As support, the defendant states that “certain occurrences so

3 The defendant requests that his equitable tolling argument be treated as conceded under Local Civil Rule 7(b), due to the government’s failure to rebut this argument, which the defendant had raised in his reply seeking

3 compromised his mental state during the relevant period that he was rendered unable to identify

or articulate an Eighth Amendment claim.” Id. at 3.4

A habeas petitioner is entitled to equitable tolling only if he shows (1) “that he has been

pursuing his rights diligently,” and (2) “that some extraordinary circumstance stood in his way”

to prevent timely filing. Holland v. Florida,

, 649 (2010); see also United States v.

McDade,

(D.C. Cir. 2012) (“Guided by Holland v. Florida, interpreting

, we join our sister circuits in holding that equitable tolling applies to § 2255

motions.” (internal citation omitted)). The extraordinary circumstance cited by the defendant is

“the level of stress and trauma attributable to his service of a life sentence, the disappearance of

his parents and the correspondence he received indicating that his mother was alive and would

contact him and his sister.” Def.’s Reply to Gov’t’s Opp’n to Leave to File § 2255 Mot. (“Def.’s

Cir. Reply”) at 3, D.C. Cir. No. 16-3030, Doc. No. 1621771 (D.C. Cir. June 24, 2016). The

defendant’s mother has apparently been missing since 1975, and the alleged correspondence

consisted of approximately five anonymous letters sent to the defendant between November

2009 and February 2014 concerning his mother being alive. Id. at 2; id., Ex. 1, Sworn Aff. of

Eric Hicks (“Def.’s Aff.”) ¶¶ 2–3. In an affidavit filed at the D.C. Circuit, the defendant asserts

that “he was so distraught, distressed, and traumatized that it rendered him unable to locate,

authorization from the D.C. Circuit to file a successive § 2255 motion. Def.’s Reply at 4–5. This request is denied since the equitable tolling argument was raised for the first time before this Court only in his reply brief, to which the government has no automatic right to respond. See LCvR 7(b); Winston & Strawn, LLP v. McLean,

(D.C. Cir. 2016) (noting that treating a motion as conceded is within the District Court’s discretion). 4 The defendant also explains that, in 2014, he was pursuing commutation under President Obama’s Clemency Initiative, which effort was only permitted if no other forms of judicial or administrative relief are available and thus a pending § 2255 motion would have disqualified him from seeking clemency. Def.’s Reply at 3– 4. The defendant was first contacted in 2014 regarding the Clemency Initiative, Def.’s Reply to Gov’t’s Opp’n to Leave to File § 2255 Mot. at 2, No. 16-3030, Doc. No. 1621771 (D.C. Cir. June 24, 2016), and therefore this excuse cannot serve as a basis for any equitable tolling of the one-year period after Miller, between June 2012 and June 2013.

4 research or litigate a legal claim or to assist any individual doing the same on his behalf.” Def.’s

Aff. ¶ 4.

Although the receipt of letters about a long-missing parent would understandably cause

the defendant emotional distraction and even distress, the D.C. Circuit has never held that such

distress constitutes “extraordinary circumstances” warranting equitable tolling of the applicable

limitations period for the filing of a § 2255 motion.5 While some circuits have found that mental

incompetence may constitute an extraordinary circumstance warranting equitable tolling of §

2255’s limitations period, this has been limited to cases where the incompetence is so severe as

to have been subject to diagnosis and documentation by medical or expert personnel or otherwise

requiring some form of hospitalization. See, e.g., Bills v. Clark,

, 1094–95 (9th

Cir. 2010) (allowing equitable tolling where the petitioner was illiterate and had “neurological

deficits, borderline to mildly retarded level of intelligence,” and “could [not] understand his legal

rights sufficiently to make rational choices with respect to acting upon them” (alteration in

original); Stiltner v. Hart, 657 Fed. App’x. 513, 522 (6th Cir. 2016) (tolling the statute of

limitations where detailed evidence showed that the petitioner was in fact “mentally

incompetent”). By contrast, undocumented and otherwise unsupported claims of incompetence

have been found insufficient to establish “extraordinary circumstances.” See, e.g., Alva v. Busby,

588 Fed. App’x 621, 622 (9th Cir. 2014) (denying equitable tolling where petitioner’s claim that

“he suffered from distress and hypoglycemia which caused confusion and difficulty thinking . . .

does not meet the Bills standard”); Champney v. Sec’y Pa. Dep’t of Corr., 469 Fed. App’x 113,

5 The defendant’s claim that he suffered four years of incapacitating distress during the period that he received the five letters about his mother is too convenient to be credible and is belied by his litigating activities during this period of 2009 to 2014, when he received the last letter. Specifically, the defendant was sufficiently able to function to file a pro se motion in this Court in 2012, see Order Denying Motion to Join Co-Defendant’s Motion, ECF No. 624, and to initiate a Freedom of Information Act (FOIA) suit, in January 2013, against the Executive Office for the United States Attorneys, see Hicks v. Exec. Office for United States Attys.,

(D.D.C. 2013).

5 117–18 (3d Cir. 2012) (denying equitable tolling where petitioner had never “been adjudicated

incompetent”); see also United States v. Williams, 485 Fed. App’x 978, 979 (10th Cir. 2012)

(“Equitable tolling based on mental incapacity is warranted only in exceptional circumstances,

where, for example, the objective standard of adjudication or institutionalization is met.”

(internal quotation marks omitted)). The defendant’s claim—unsupported except by his own

three-page affidavit— of incapacitating stress from letters about his long-lost mother simply falls

far short of establishing the severe level of mental incapacity shown in Bills or Stiltner that

would meet the standard of extraordinary circumstances warranting equitable tolling of the

limitations period.6 Accordingly, the defendant’s § 2255 motion must be dismissed as untimely.

B. § 2255 MOTION IS WITHOUT MERIT

Even if not untimely, the instant motion would fail on the merits because Graham and

Miller present no bar to the sentence imposed. As the defendant concedes, the superseding

indictment alleged that the charged conspiracies occurred from “on or about February 1988”

through February 1993, and, consequently, since his birthday is February 2, 1970, the defendant

was a juvenile for, at most, one day during the five years of the charged conspiracies. Def.’s

Mem. at 3. Indeed, much of the evidence proving the defendant’s participation in the conspiracy

to distribute cocaine base and the RICO conspiracy post-dates his eighteenth birthday on

February 2, 1988. See Gov’t’s Opp’n to Def.’s § 2255 Motion (“Gov’t’s Opp’n”), at 4–8, ECF

No. 645 (summarizing evidence presented at trial, including the defendant’s December 1988

arrest for selling “crack cocaine to an undercover police officer”; video evidence from the

6 Even if equitable tolling on the basis of mental incapacity were available in this Circuit, the defendant’s factual support for this claim is wholly insufficient to warrant further development of the record. Compare Boulb v. United States,

(7th Cir. 2016) (denying remand for an evidentiary hearing where the petitioner provided only “conclusory allegations,” not “specific facts about those alleged mental deficiencies”), with Dent v. Knowles, 448 Fed. App’x 705, 706 (9th Cir. 2011) (remanding to develop the record where the pro se petitioner had “made a good-faith showing of mental incompetence” by “attach[ing] a sworn declaration and roughly 70 pages of documentation, including medical records” showing an IQ of 56).

6 summer of 1990 of drug activity; drug sales by the defendant in late 1991; and evidence from

searches of residences in August 1990 and February 1992). Moreover, the government correctly

notes that Graham and Miller, which both involved convictions for discrete, one-time acts by

juveniles—attempted burglary and attempted armed robbery in Graham, 560 U.S. at 53–54, and

murder in Miller, 567 U.S. at 465—have not been extended to convictions where any of the

criminal acts occurred substantially or in part after the defendant’s eighteenth birthday. Gov’t’s

Opp’n at 8. Thus, the defendant’s claim is without merit.

C. NO CERTIFICATE OF APPEALABILITY IS WARRANTED

If a district court “enters a final order adverse to the applicant,” it “must issue or deny a

certificate of appealability” (“COA”) to the defendant. Fed. R. Crim. Pro. Gov. § 2255

Proceedings 11; United States v. Mitchell,

(D.C. Cir. 2000) (“[T]he district

court should rule in the first instance on whether a COA should be issued” (citing Fed. R. App.

P. 22(b)). A certificate of appealability is appropriate when the defendant shows “that

reasonable jurists would find the district court’s assessment of the constitutional claims debatable

or wrong.” Slack v. McDaniel,

(2000). If the court denies the § 2255 motion

on procedural grounds, a COA should issue only if “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and [] jurists of

reason would find it debatable whether the district court was correct in its procedural ruling.”

United States v. Baxter,

, 26 n.10 (D.C. Cir. 2014) (quoting Slack,

).

In this case, the defendant is not entitled to a COA because “reasonable jurists” would not

debate that the defendant failed to file a timely § 2255 motion and that equitable tolling is not

warranted.

7 III. CONCLUSION

For the foregoing reasons, petitioner’s § 2255 motion to vacate his sentence is denied as

untimely and, in any event, would otherwise fail on the merits. Accordingly, it is hereby

ORDERED that the defendant’s Motion to Vacate, Set Aside or Correct His Sentence,

ECF No. 640, is DENIED; and it is further

ORDERED that no certificate of appealability will issue.

SO ORDERED

Date: January 5, 2018

__________________________ BERYL A. HOWELL Chief Judge

8