Ewing v. United States

Background

Takiem Ewing pleaded guilty in 2018 to participating in two carjackings, each involving a death, and to providing synthetic cannabinoids to inmates. The plea agreement stated that the sentencing range was 360 months to life imprisonment if Ewing received a three-level reduction for accepting responsibility. It also waived his right to appeal a sentence within or below that range.

At sentencing on June 13, 2019, the court granted the three-level reduction and calculated a guideline range of 360 months to life. The court considered Ewing’s role in the offenses, the sentences imposed on co-defendants, his relative culpability, his remorse, and the other sentencing factors. It imposed a 384-month sentence. Judgment was entered on June 20, 2019, and Ewing did not appeal.

Ewing first contacted the court about a sentence challenge in November 2021. He later filed an amended motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence. He argued, among other things, that his lawyer provided ineffective assistance at sentencing, failed to file a requested notice of appeal, failed to raise a vagueness challenge to his guilty plea, and failed to advise him properly about sentencing reductions. He also argued that the court was biased and that pandemic-related prison restrictions prevented an earlier filing.

Timeliness ruling

The government argued that the motion was barred by § 2255’s one-year filing deadline. The court agreed. It held that Ewing’s conviction became final on July 5, 2019, when the time to file a direct appeal expired. Under the ordinary deadline, Ewing therefore had to file by July 5, 2020. Because his motion was filed on November 17, 2021, the court found it untimely.

The court rejected Ewing’s argument that the deadline should run from a later date because his lawyer allegedly failed to file a requested appeal. The court explained that a later deadline can apply when a prisoner could not have discovered the lawyer’s failure earlier despite reasonable diligence. But Ewing alleged no facts showing that he contacted his lawyer or the court to check whether an appeal had been filed. The court concluded that a diligent person would have discovered the absence of an appeal within a few months after judgment, and no later than the end of 2019.

The court also rejected Ewing’s reliance on pandemic restrictions. It held that the pandemic was not created by the government and that the Bureau of Prisons’ health and safety measures did not prevent him from filing a motion. The court noted that Ewing’s first communication after the restrictions had ended was only a request for a form and instructions.

Other arguments

The court found that Ewing had not identified facts showing when he discovered the alleged attorney errors or that he had acted diligently. It also held that learning new legal arguments is not the same as discovering new facts for purposes of the filing deadline. In addition, the court stated that Ewing did receive the reduction for accepting responsibility, that the statutes underlying his convictions had not been found unconstitutionally vague in the authorities discussed, and that the record showed no basis for a claim of sentencing bias.

The court further held that equitable tolling—a limited extension of a filing deadline—was unavailable because Ewing had not shown diligent pursuit of his rights or an extraordinary circumstance that prevented timely filing.

Disposition

The court denied Ewing’s § 2255 motion and dismissed the petition as untimely. It also ruled that no certificate of appealability would issue and denied permission to appeal without paying filing fees. The clerk was directed to close the case and mail Ewing a copy of the opinion and order.