Case 2:14-cr-00321-GMN-NJK Document 441 Filed 09/29/23 Page 1 of 7
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`Case No.: 2:14-cr-00321-GMN-NJK-1
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`ORDER
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`UNITED STATES OF AMERICA,
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` Respondent/Plaintiff,
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`vs.
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`KEVIN HALL,
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`Petitioner/Defendant.
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`Pending before the Court is the Motion to Vacate, Set Aside, or Correct Sentence under
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`28 U.S.C. § 2255 (“§ 2255 Mot.”), (ECF No. 434), filed by Petitioner Kevin Hall
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`(“Petitioner”). The Government filed a Response, (ECF No. 438), to which Petitioner did not
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`file a Reply.
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`For the reasons discussed below, the Court DENIES Petitioner’s Motion to Vacate, Set
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`Aside, or Correct Sentence under 28 U.S.C. § 2255.
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`I.
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`BACKGROUND
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`On April 19, 2017, Petitioner pleaded guilty to one count of conspiracy to interfere with
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`commerce by robbery in violation of 18 U.S.C. § 1951, three counts of interference with
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`commerce by robbery in violation of 18 U.S.C. §§ 1951–52, and one count of brandishing a
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`firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 2,
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`924(c)(1)(A)(i) and (ii). (See Mins. Proceedings, Change of Plea, ECF No. 270); (Superseding
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`Indictment, ECF No. 167). As part of Petitioner’s plea bargain, he waived his right to appeal or
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`to collaterally challenge his conviction or sentence in any collateral proceeding, except non-
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`waivable claims of ineffective assistance of counsel. (Plea Memo. 14:6–19, ECF No. 271). On
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`Case 2:14-cr-00321-GMN-NJK Document 441 Filed 09/29/23 Page 2 of 7
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` September 6, 2017, the Court sentenced Petitioner to 154 months’ imprisonment. (See Mins.
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`Proceeding, Sentencing, ECF No. 305).
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`Petitioner subsequently appealed his sentence, (Not. Appeal, ECF No. 311), challenging
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`the manner in which his sentence was determined (Id.). On October 28, 2020, the Ninth Circuit
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`dismissed Petitioner’s appeal, concluding that the appeal waiver contained in Petitioner’s was
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`valid, and “because [Petitioner] waived the right to appeal any aspect of his conviction and
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`within-Guidelines sentence, including the manner in which his sentence was determined, the
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`appeal waiver encompasse[d] his claims on appeal.” United States v. Hall, No. 17-10390, 2020
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`WL 8922185, at *1 (9th Cir. 2020). More than two years after Petitioner’s appeal was
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`dismissed, he filed the instant § 2255 Motion, (ECF No. 434), which the Court discusses below.
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`II.
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`LEGAL STANDARD
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`Section 2255 provides, in pertinent part: “A prisoner in custody under sentence of a
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`court established by Act of Congress claiming the right to be released upon the ground that the
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`sentence was imposed in violation of the Constitution or laws of the United States . . . may
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`move the court which imposed the sentence to vacate, set aside or correct the sentence.” See
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`also Davis v. United States, 417 U.S. 333, 344-45 (1974). To warrant relief, the prisoner must
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`demonstrate the existence of an error of constitutional magnitude which had a substantial and
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`injurious effect or influence on the guilty plea or the jury's verdict. See Brecht v. Abrahamson,
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`507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir.
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`2003) (“Brecht’s harmless error standard applies to habeas cases under section 2255[.]”).
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`Relief is warranted only upon the showing of “a fundamental defect which inherently results in
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`a complete miscarriage of justice.” Davis, 417 U.S. at 346.
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`Under Section 2255, “a district court must grant a hearing to determine the validity of a
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`petition brought under that section, ‘[u]nless the motions and the files and records of the case
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`conclusively show that the prisoner is entitled to no relief.’” United States v. Blaylock, 20 F.3d
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`Page 2 of 7
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`Case 2:14-cr-00321-GMN-NJK Document 441 Filed 09/29/23 Page 3 of 7
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`1458, 1465 (9th Cir. 1994) (emphasis in original) (quoting 28 U.S.C. § 2255). The court may
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`deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for
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`relief or “are so palpably incredible or patently frivolous as to warrant summary dismissal.”
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`United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996). To earn the right to a hearing,
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`therefore, the movant must make specific factual allegations which, if true, would entitle him to
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`relief. Id. Mere conclusory statements in a section 2255 motion are insufficient to require a
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`hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
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`III. DISCUSSION
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`The Government argues Petitioner’s § 2255 Motion is barred by the statute of
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`limitations. (Resp. 3:6–4:18, ECF No. 438). “Whether a petition is barred by the statute of
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`limitations is a threshold issue that must be resolved before considering other procedural issues
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`or the merits of individual claims.” United States v. Laughing, No. 10-cr-8074, 2017 WL
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`8941235, at *2 (D. Ariz. Feb. 22, 2017). Accordingly, the Court begins by determining
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`whether Petitioner’s § 2255 Motion is timely.
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`A. Statute of Limitations
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`A one-year statute of limitations applies to all § 2255 motions, which begins to run when
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`the underlying judgment of conviction becomes final.1 The “finality date of a criminal
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`1 Section 2255(f) provides four alternative dates at which the statute of limitations period may begin to run:
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`(1) the date on which the judgment of conviction becomes final;
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`(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;
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`(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
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`(4) the date on which the facts supporting the claim or claims presented could have been discovered
`through the exercise of due diligence.
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`Case 2:14-cr-00321-GMN-NJK Document 441 Filed 09/29/23 Page 4 of 7
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`judgment—that is, the date the one-year limitations period begins to run for purposes of a §
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`2255 petition—depends upon a defendant’s post-conviction appellate activity.” United States v.
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`Latin, No. 17-cr-00514, 2022 WL 676670, at *3 (D. Haw. Mar. 7, 2022). If a defendant does
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`not pursue a timely direct appeal to the court of appeals, his or her conviction and sentence
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`become final, and the statute of limitations begins to run, on the date on which the time for
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`filing such an appeal expired. See United States v. LaFrombiose, 427 F.3d 680, 683 (9th Cir.
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`2005) (citing Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)). If a defendant does appeal, a
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`conviction becomes final when the Supreme Court “affirms a conviction on the merits on direct
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`review or denies a petition for a writ of certiorari, or when the time for filing a certiorari
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`petition expires.” United States v. Clay, 537 U.S. 522, 527 (2003). “The certiorari deadline
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`expires ninety days from the entry of judgment or filing of the order from which review is
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`sought.” Lii v. United States, No. 06-cr-00143, 2009 WL 3526700, at *2 (D. Haw. Oct. 29,
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`2009) (citing Sup. Ct. R. 13.1).
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`Petitioner’s appeal to the Ninth Circuit concluded on October 28, 2020, the day the
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`Ninth Circuit dismissed Petitioner’s appeal. Hall, WL 8922185, at *1. Petitioner’s judgment
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`did not become final for purposes of calculating the statute of limitation under § 2255(f)(1)
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`until ninety days later—March 3, 2021—when the period Petitioner had for filing a petition of
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`certiorari elapsed. See United States v. Garcia, 210 F.3d 1058, 1059 (9th Cir. 2000)
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`(explaining that when a federal prisoner fails to file a petition for certiorari, a judgment is final
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`“90 days after entry of the court of appeals’ judgment”). Petitioner filed the present § 2255
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`Motion on June 23, 2023, over two years after his judgment became final. (See generally §
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`2255 Mot.). Therefore, his § 2255 Motion is untimely. Although Petitioner’s Motion is
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`Petitioner does not allege, and the Court does not find, that any of the circumstances presented in §§
`2255(f)(2)–(4) apply in the instant case. Therefore, the Court considers the applicable statute of limitations
`period to be the one set forth in § 2255(f)(1).
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`Case 2:14-cr-00321-GMN-NJK Document 441 Filed 09/29/23 Page 5 of 7
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`untimely, the Court considers whether Petitioner is entitled to equitable tolling such that his
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`Motion may still be considered.
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`B. Equitable Tolling
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`Liberally construing Petitioner’s Motion, he argues the statute of limitations period
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`should be tolled due to the ineffective assistance of counsel he received and the COVID-19
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`pandemic. (§ 2255 Mot. at 11).
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` “Equitable tolling is applicable only if extraordinary circumstances beyond a prisoner's
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`control make it impossible to file a petition on time” and those extraordinary circumstances are
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`“the cause of [the] untimeliness.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quotation
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`marks and citation omitted). Indeed, “the threshold necessary to trigger equitable tolling is
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`very high.” United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (quotation
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`marks, ellipses, and citation omitted). “[A] litigant seeking equitable tolling bears the burden
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`of establishing two elements: (1) that [s]he has been pursuing [her] rights diligently, and (2)
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`that some extraordinary circumstance stood in [her] way.” Pace v. DiGuglielmo, 544 U.S. 408,
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`418 (2005). And “for a litigant to demonstrate [s]he has been pursuing [her] rights diligently . .
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`. [s]he must show that [s]he has been reasonably diligent in pursuing [her] rights not only while
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`an impediment to filing caused by an extraordinary circumstance existed, but before and after
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`as well, up to the time of filing [her] claim[s] in federal court.” Smith v. Davis, 953 F.3d 582,
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`598-99 (9th Cir. 2010) (internal citations and quotation marks omitted). Here, Petitioner has
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`not met his burden.
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`“The COVID-19 pandemic, in itself ‘does not automatically warrant equitable tolling for
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`any petitioner who seeks it on that basis.” United States v. Rivera, No. 2:19-cr-87, 2022 WL
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`1434650, at *3 (E.D. Wash. May 5, 2022) (quoting Olsen v. United States, No. 4:20-cv-166,
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`2021 WL 329462, at *3 (D. Idaho Feb. 1, 2021). Without any supporting details or
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`documentation, Petitioner’s generalized allegations are too conclusory to warrant equitable
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`Case 2:14-cr-00321-GMN-NJK Document 441 Filed 09/29/23 Page 6 of 7
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`tolling. See Robinson v. Marshall, 405 F. App'x 241, 242 (9th Cir. 2010) (“[Petitioner]
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`contends that he is entitled to equitable tolling based on his inability to access the law library
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`during extended prison lockdowns. This contention fails because [petitioner] did not
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`demonstrate how limited access to the library was the cause of his failure to timely file his
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`petition.”); Davis v. Kibler, No. 2:21-cv-07620, 2022 WL 2121907, at *6 (C.D. Cal. Feb. 24,
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`2022) (“Here, Petitioner did not provide a specific explanation as to how COVID-19 hindered
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`his ability to timely file his federal petition. While he alleges general difficulties in accessing
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`the prison library during COVID-19 lockdowns, Petitioner fails to provide specific facts to
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`show that lack of access to the library ‘actually prevented’ him from timely filing his federal
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`petition.”) (citation omitted); Smith v. United States, No. 21-cr-5747, 2021 WL 5910486, at *4
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`(W.D. Wash. Dec. 1, 2021) (determining plaintiff did not establish extraordinary circumstances
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`necessary to justify equitable tolling where he “broadly refer[red] to the pandemic and the
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`difficulties it imposed” without explaining “how those complications prevented his timely
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`filing”). While the effects of the COVID-19 pandemic could conceivably present extraordinary
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`circumstances, Petitioner cannot meet his burden of establishing that the Court should apply the
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`doctrine of equitable tolling “‘simply by making a passing reference to the pandemic or the
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`resulting lockdown.” Hines v. United States, No. 17-CR-364-2, 2021 WL 2456679, at *2
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`(S.D.N.Y. June 16, 2021) (quoting United States v. Aigbekaen, No. 15-cr-0462, 2021 WL
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`1816967, at *1 (D. Md. May 6, 2021)).
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`Moreover, to the extent Petitioner argues his prior counsel’s ineffective assistance
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`delayed his filing of the instant Motion, the Court finds this conclusory argument fails to
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`establish Petitioner’s diligence or extraordinary circumstances. Absent from Petitioner’s
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`contention is any explanation for how and why his counsel’s purported ineffective assistance
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`delayed his filing of the instant Motion. “Without almost any factual allegations, the Court
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`finds that [Petitioner’s] untimely § 2255 motion is not entitled to equitable tolling for either the
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`Case 2:14-cr-00321-GMN-NJK Document 441 Filed 09/29/23 Page 7 of 7
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`delays relating to his prior counsel’s [alleged] ineffective assistance or any prison lockdowns
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`due to the COVID-19 pandemic.” United States v. Martinez-Flores, No. 5:17-cr-00068, 2023
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`WL 3259476, at *2 (N.D. Cal. May 3, 2023).
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`In sum, because the Court finds Petitioner has failed to demonstrate “extraordinary
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`circumstances” to justify equitable tolling of the one-year statute of limitations, his § 2255
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`Motion is time-barred.
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`C. Certificate of Appealability
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`“The district court must issue or deny a certificate of appealability when it enters a final
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`order adverse to the applicant.” Rule 11(a), Rules Governing § 2255 Proceedings. A certificate
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`of appealability should issue as to those claims on which the petitioner makes “a substantial
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`showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard is
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`satisfied if “jurists of reason could disagree with the district court’s resolution of [the]
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`constitutional claims” or “conclude the issues presented are adequate to deserve encouragement
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`to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel,
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`529 U.S. 473, 484 (2000)). Here, reasonable jurists would not find either the § 2255 Motion
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`was timely filed or that its untimeliness should be excused. Accordingly, a certificate of
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`appealability is DENIED.
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`IV. CONCLUSION
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`IT IS HEREBY ORDERED that Petitioner’s § 2255 Motion, (ECF No. 434), is
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`DENIED.
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`DATED this _____ day of September, 2023.
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`__________________________________
`Gloria M. Navarro, District Judge
`United States District Court
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