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holding that the commencement date for the AEDPA's limitation period may not be premised on a "state-created impediment" unless the impediment has actually prevented the prisoner from filing his petition
Summary of this case from Carr v. DretkeOpinion
No. 3:99-CR-0279-P (01), No. 3:01-CV-1719-P
October 15, 2002
MEMORANDUM AND ORDER
The Court has under consideration a Motion to Vacate, Set Aside, or Reduce Sentence filed by Charles Tamfu (movant) and the Government's Motion to Dismiss Petitioner's Motion Under 28 U.S.C. § 2255. Respondent seeks an order dismissing the motion to vacate as time-barred. The following procedural background is material to the time-bar issue:
I. PROCEDURAL BACKGROUND
On November 3, 1999, movant pled guilty to federal charges pending against him. In a judgment entered January 19, 2000, the Court sentenced him to forty-five months imprisonment. On March 2, 2000, the Fifth Circuit Court of Appeals dismissed movant's appeal because he moved to voluntarily dismiss it. On May 22, 2001, movant submitted his initial motion to vacate to this Court. On August 14, 2001, the Court allowed him to voluntarily dismiss that motion. On August 27, 2001, he filed the instant motion to vacate.
Under the prison mailbox rule, a motion to vacate sentence is deemed filed when the prisoner delivers the petition to prison authorities for mailing to the court. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). The record does not reflect when movant gave his motion to the prison authorities for mailing, but it was, nevertheless, "filed" sometime between August 27, 2001, when he signed the motion, and August 31, 2001, when this Court received it. See id. Giving movant the benefit of the doubt, the Court uses the date he signed the motion as date of filing.
Movant seeks to vacate his conviction and sentence on two grounds. He first claims that he received ineffective assistance of counsel when his trial attorney
(a) failed to investigate the facts of his case;
(b) performed inadequately during plea negotiations;
(c) failed to object to errors in the Presentence Report (PSR);
(d) coerced him to plead guilty;
(e) made misrepresentations to him regarding whether he would serve his federal and state sentences concurrently or consecutively;
(f) failed to act at sentencing;
(g) failed to protect his appeal rights; and
(h) failed to file an appeal.
He also claims that he had his due process rights violated when
(a) the government suppressed material evidence such as "fingerprint tests" in violation of Brady v. Maryland, 373 U.S. 83 (1963);
(b) he involuntarily entered his guilty plea, because:
(i) he was not informed that his federal sentence would run consecutively to his then existing state sentence;
(ii) he was coerced by counsel, who told him not to raise any objections lest the government and Court "railroad him";
(iii) he was deprived of the immunity provision in his plea agreement when the government refused to thereafter interview him; and
(iv) he entered the plea on the erroneous advice of counsel that issues would be preserved for appeal;
(c) the Court based his sentence on false information in the PSR;
(d) "Double Counting" affected his sentence;
(e) he was denied his right to appeal; and
(f) the government engaged in misconduct such as unconstitutional pre-indictment delay, knowingly using perjured testimony that portrayed movant as "the kingpin", and declined to interview movant after granting him "immunity for any criminal acts" not already known to the government.
(See Mot. to Vacate at 3-7.)
When movant filed the instant motion to vacate, he believed the motion to be untimely. (See id. at 9 [seeking to file the motion "out-of-time" as part of the relief].) In fact, he believed he had also fried his initial motion to vacate "out of time." (See id. at 1.) He, nevertheless, provides numerous bases for finding the instant motion to vacate timely. He contends that he was unaware "of the availability of post-conviction relief due to ineffective assistance of counsel." (id. at 2.) He further contends that he lacked access to an adequate prison library prior to arriving in federal custody. (Id.) He also contends that "[h]e has been waiting for materials requested under the Freedom of Information Act [(FOIA)] and the Privacy Act [(PA)] . . . which he believes will support his factual allegations." (Id.) He argues that the one year statute of limitations "should be tolled until [he] receives said exculpatory materials" under FOIA/PA. (Id.) He also argues that equitable tolling "is warranted, because the government charged [him] in flawed information negligently and carelessly prepared, and failed to disclose exculpatory information to [him] ." (Id.)
The Court will hereinafter refer to these acts together as FOIA/PA.
On November 1, 2001, the government moved to dismiss the instant motion to vacate on the ground that movant filed the motion more than one year after his judgment of conviction became final. (Mot. Dismiss at 1-4.) It suggests that no legitimate basis exists for equitable tolling. (Id. at 3-4.)
On November 13, 2001, movant filed a motion seeking permission to file a traverse. (Mot. For Permission to Traverse Answer.) He thereafter filed several objections to the government s motion to dismiss. The Court will consider such objections, but denies permission to file any other type of traverse. In his objections, movant reiterates that tolling is appropriate because he "has not yet received any responsive materials" to his FOIA/PA request. (Obj'ns to Mot. Dismiss at 1.) He also urges the Court to equitably toll the limitations period, because "he was prevented in an extraordinary way from asserting his rights because his counsel and the government (the language of the plea agreement leads one to believe there is no possibility of collateral attack) led him to believe there were no possible avenues for relief." (Id.) He further contends that the circumstances of his case warrant equitable tolling for the inadequacies of the prison law libraries, notwithstanding the general rule that an inadequate law library is insufficient to warrant tolling. (Id.) He claims that, not only were the law libraries inadequate, but that he was transferred to a different prison in retaliation for doing legal research at the library." (Id.)
On March 4, 2002, movant filed additional objections to the motion to dismiss. (See Additional Obj'ns Mot. Dismiss at 1.) He therein clarifies that "he concedes nothing to the government." (Id.) Citing Rule 9 of Rules Governing Section 2255 Proceedings for the United States District Courts, he contends that, because he "exercised due diligence in ascertaining possible grounds for relief and his delay in filing is excusable, the 1 year time bar is inoperative." (Id.) He further contends that, in view of United States v. Gamble, 208 F.3d 537 (5th Cir. 2000), he timely filed his initial motion to vacate because his conviction did not become final until the ninety days for filing a writ of certiorari elapsed. (Additional Obj'ns Mot. Dismiss at 1.) He also claims that this Court should have warned him of the potential limitations problem before permitting him to voluntarily dismiss his initial motion to vacate. (Id.)
Movant also sought a free copy of his § 2255 motion because he had "misplaced his copy." He provides no basis for the request. The Court thus denies it.
On March 7, 2002, movant filed one last objection to the government's motion to dismiss. (See Pet.'s Additional Obj'ns to Mot. Dismiss.) He therein claims that the federal statute of limitations did not commence until he was received into federal custody in October 2000. (Id. at 1.)
II. STATUTE OF LIMITATIONS
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle collateral review of federal criminal cases. It applies to all motions to vacate filed under 28 U.S.C. § 2255 on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Movant filed his motion after the effective date of the AEDPA. Title I of the Act thus applies to his motion.
One of the major changes effectuated by the AEDPA is a one-year statute of limitations for motions to vacate. See 28 U.S.C. § 2255. As amended, § 2255 provides:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(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;
(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.
A. Section 2255(2) and (3)
Movant does not base his motion on any new right that has been made retroactively applicable to cases on collateral review. Although he does not specifically argue that a government created impediment prevented him from filing his motion to vacate, he does argue that the Court should toll the limitations period in accordance with Edmond v. United States Attorney, 959 F. Supp. I (D.D.C. 1997), due to his pending request under FOIA/PA. The Edmond court, furthermore, discusses the impediment prong of 28 U.S.C. § 2255 in the context of FOIA/PA. See 959 F. Supp. at 3-4. Movant's reliance upon Edmond thus necessitates further consideration as to whether a government-created impediment prevented him from timely filing his motion to vacate.
In Edmond, the plaintiff claimed that documents requested through FOIA/PA "would aid him in overturning his criminal conviction, and therefore release him from his incarcerative status." 959 F. Supp. at 3. With respect to § 2255(2), the court stated that
in accordance with the AEDPA, the one year period of limitation would not run until "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." 28 U.S.C. § 2255(2). Therefore, if Plaintiff is claiming that the government is holding exculpatory material, the one year limitation would not begin until the Plaintiff receives that evidence.Edmond, 959 F. Supp. at 3-4 (footnote omitted).
Despite his reliance upon Edmond, movant has shown no impediment that falls within the purview of 28 U.S.C. § 2255(2). To satisfy this subparagraph, movant must show (1) a government created impediment (2) that violates the Constitution or laws of the United States and (3) prevents the filing of the motion to vacate. Although the Edmond decision seems to indicate that a claim that the government is withholding exculpatory material satisfies § 2255(2), this Court finds that position untenable. One must do more than simply claim suppression of exculpatory material to satisfy § 2255(2). One must show that the suppression has prevented the filing of a § 2255 motion.
Although § 2255(2) has not defined what constitutes an "impediment", it is clear from the statutory text that § 2255(2) may provide the commencement date for the statute of limitations only in those situations where the impediment has prevented the prisoner from filing his motion to vacate. See Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002) (reaching the same conclusion in the similar context of a state-created impediment under 28 U.S.C. § 2244(d)(1)(B)). Even assuming the government has withheld exculpatory material (a matter that movant has not demonstrated), such withholding would not prevent the filing of a motion under § 2255. Movant has provided nothing which demonstrates that the alleged impediment prevented him from filing his motion. The pendency of a request under FOIA/PA does not of itself necessarily prevent anyone from filing a motion to vacate. In this instance, furthermore, movant indicates that his request for material under FOIA/PA remains pending. The filing of the instant motion to vacate before the removal of the alleged impediment suggests that the government action did not prevent movant from filing the action. See Felder v. Johnson, 204 F.3d 168, 171 n. 9 (5th Cir. 2000) (addressing issue in closely related statute, 28 U.S.C. § 2244(d)(1)(B)). Without a showing that the alleged government created impediment prevented movant from filing his motion to vacate, the Court finds § 2255(2) inapplicable.
B. Section 2255(1) and (4)
For purposes of this action, the Court will thus calculate the one-year statute of limitations from the latest of the date movant s conviction became final or the date on which he could have discovered the facts supporting his claims through the exercise of due diligence. Although one could argue that movant's conviction in this case became final on March 2, 2000, when the Fifth Circuit dismissed his appeal at movant's request, the Court, for the sake of argument, will consider that the conviction became final on May 31, 2000, when the ninety days for filing a writ of certiorari with the United States Supreme Court elapsed.
The Fifth Circuit Court of Appeals has specifically held "that the conviction becomes final, and the one-year period begins to run, upon expiration of the time for seeking certiorari in the U.S. Supreme Court, even where, as here, the appellant has not actually filed such a petition." See United States v. Gamble, 208 F.3d 536, 536 (5th Cir. 2000). The Fifth Circuit also explained, however, that ""a conviction becomes final when a defendant's options for further direct review are foreclosed, ' whether or not those options have been pursued." Id. at 537 (quoting United States v. Thomas, 203 F.3d 350, 352 (5th Cir. 2000)). In this instance, one could argue that movant's voluntary dismissal of his appeal foreclosed any option for further direct review. If successful, such argument would distinguish the instant case from Gamble. Under the facts of this case, however, the Court need not definitively decide whether the voluntary dismissal forecloses further direct review. Consequendy, the Court will assume without deciding that movant's conviction did not become final until the ninety days for filing a writ of certiorari elapsed.
Having carefully reviewed the claims raised in the instant motion, the Court determines that the facts supporting them became known or could have become known with the exercise of due diligence by the time movant's conviction became final on May 31, 2000. With respect to his claims regarding plea negotiations and the voluntariness of such plea, movant would have known the factual predicate for such claims during the plea process. During the plea negotiations, movant would have been able to judge the adequacy of his attorney's plea-negotiation performance. At that time, he would have known the factual basis for his claims that he entered his plea involuntarily and that his attorney coerced him into the plea. In February or March 2000, furthermore, movant would have known that his attorney had failed to file an appeal. During that same time period, he would have known the efforts taken by counsel to protect his appeal rights.
In addition, movant would have known at sentencing the facts supporting his claims that the Court based his sentence on false information; that "Double Counting" affected his sentence; and that his attorney failed to act at sentencing, including the claimed failure to object to matters in the PSR. When the Court sentenced movant, he would also have known the factual predicate for his claims that the government unconstitutionally delayed his indictment, knowingly using perjured testimony that portrayed movant as "the kingpin", and declined to interview movant after granting him "immunity for any criminal acts" not already known to the government.
Movant had nearly seven months between his guilty plea on November 3, 1999, and the date his conviction became final on May 31, 2000, to discover the facts supporting his claims. Not only is such time sufficient to learn the factual predicate for the claims already mentioned above, such time also appears sufficient to discover the factual basis of his claims that his attorney failed to investigate the facts of his case and made misrepresentations to him. Such time also appears sufficient to discover the factual basis of his claims that the government suppressed fingerprint tests in violation of Brady.
Movant makes very broad and conclusory statements regarding the suppression of "Brady material." The only specific evidence alleged to have been withheld, however, is "fingerprint tests." The Court will not construe this action as encompassing other alleged Brady violations because such violations would necessarily fail as conclusory and unsupported. Conclusory and speculative allegations "cannot support a Brady claim." Murphy v.Johnson, 205 F.3d 809, 814 (5th Cir.) (quoting Hughes v. Johnson, 191 F.3d 607, 629 (5th Cir. 1999)), cert. denied, 531 U.S. 957 (2000).
The Edmond decision also addresses the factual predicate issue in cases involving FOIA/PA. It states:
Additionally, section 2255(4) provides another caveat to the one year period of limitation. The period of limitation does not begin until "the date on which the facts supporting the claim or claims discovered through the exercise of due diligence." By filing a FOIA request and further filing these proceedings, Plaintiff has demonstrated due diligence in attempting to obtain the materials. Therefore, Plaintiff would not be subject to the period of limitation until after his FOIA request is processed.Edmond, 959 F. Supp. at 4.
Movant's pending request under FOIA/PA does not alter the Court's finding that movant knew or should have known with the exercise of due diligence the factual bases for his current Brady claim by May 31, 2000. He states that "[h]e has been waiting for materials requested under [FOIA/PA] . . . which he believes will support his factual allegations." (Mot. to Vacate at 2.) Such statement indicates that movant seeks only support for known factual allegations by his request for materials. Movant, moreover, cannot successfully pursue claims based upon speculation and conjecture. Movants must have some factual basis behind their claims. While movant's pending FOIA/PA request could perhaps lead to the discovery of previously unknown facts that could not otherwise have been discovered through the exercise of due diligence and thus invoking the commencement date of 28 U.S.C. § 2255(4) for a currently undiscovered Brady violation, the pending FOIA/PA request has no present impact on the limitations period of 28 U.S.C. § 2255. Such a request does not impact the limitations period, until the movant has actually obtained newly discovered evidence that could not have been discovered earlier through the exercise of due diligence. To the extent Edmond stands for a contrary position, the Court finds it unpersuasive.
Movant filed the instant motion on August 27, 2001. For present purposes, the Court considers that his conviction became final on May 31, 2000. With the exercise of due diligence, furthermore, movant should have known the factual predicate for each of his claims by the time his conviction became final. Under § 2255(1) and (4) the instant motion thus appears untimely. Movant, nevertheless, presents several reasons for finding his motion timely.
C. Tolling and Other Bases for Finding Motion Timely
Movant argues that the federal statute of limitations did not commence until he completed his state sentence and commenced serving his federal sentence. This argument has no merit. It was established long ago that 28 U.S.C. § 2255 "is available to a prisoner in state custody attacking a federal sentence scheduled to be served in the future." See Simmons v. United States, 437 F.2d 156, 159 (5th Cir. 1971). There is "no reason to restrict section 2255 to prisoners actually in federal custody." id. Consequently, movant's prior state custody has no effect on the commencement date of the federal statute of limitations.
Relying upon Edmond v. United States Attorney, 959 F. Supp. 1 (D.D.C. 1997), movant next argues that his filing of a request under FOIA/PA tolls the limitations period. Although the Court has already discussed and rejected the Edmond decision in the context of 28 U.S.C. § 2255(2) and (4), the tolling argument is sufficiently distinct to merit additional consideration. To the extent movant wants to toll the statute of limitations based upon Edmond, the Court nevertheless finds no reason for tolling. The United States District Court for the Eastern District of New York aptly distinguished Edmond:
Edmond in no way supports [a] blanket assertion of a toll. Indeed, the case nowhere refers to the section of AEDPA that provides for a toll. Instead, Edmond stands for the wholly unremarkable proposition that AEDPA's time period does not begin to run, in cases of newly discovered evidence, until the time when the petitioner should have discovered the facts supporting his claim. Where a request for documents reveals new information relevant to a petitioner's claim no toll is necessary for a habeas petition to be timely. Instead . . . it is the possession of the relevant evidence that starts the running of the statute anew.Sorce v. Artuz, 73 F. Supp.2d 292, 298 (E.D.N.Y. 1999). The Court finds the reasoning of Sorce persuasive. A request under FOIA/PA provides no basis to toll the one-year limitations period of 28 U.S.C. § 2255.
Movant next argues that the Court should toll for the time period that his previous federal petition was pending in this Court. Section 2255 does not provide for such tolling. In a different context, furthermore, the Fifth Circuit has held that "[a] federal statute of limitations is not tolled when the plaintiff files a claim that later is voluntarily dismissed." Basco v. American General Ins. Co., 43 F.3d 964, 965-66 (5th Cir. 1994). The Court agrees that once movant "voluntarily dismissed his first suit, he was in the same position as if the suit had never been filed." See id. at 966. The rule stated in Basco is as relevant to actions under 28 U.S.C. § 2255 as it is to the federal statute of limitations therein at issue.
In a related argument, movant claims that this Court should have warned him of the potential limitations problem prior to allowing him to voluntarily dismiss his initial motion to vacate. The Court, however, has no duty to make such warning before granting a voluntary dismissal under Fed.R.Civ.P. 41(a). Movant, moreover, was acutely aware of the limitations issue. In addition, the Court directly addressed the potential problem with limitations when it stated the following in the Memorandum and Order that allowed movant to voluntarily dismiss his motion to vacate:
Defendant's motion mentions that, he may try to file another "§ 2255 motion out of time at a later date." The Court is expressing no position on the limitations issue. A one-year period of limitations applies to motions filed under § 2255. That defendant's initial motion "was the artless effort of a layperson without legal training" does not change that. Nor does the instant motion to voluntarily withdraw the motion under Rule 41(a) change that. Rule 41(a) gives defendant an absolute right to dismiss his action "without order of the court" as long as he files a notice of dismissal prior to the respondent's answer or motion for summary judgment. The instant motion is reasonably construed as such a notice of dismissal.
For the foregoing reasons, the Court GRANTS defendant's Motion to Voluntarily Withdraw § 2255 Motion Without Prejudice. Defendant's Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to 28 U.S.C. § 2255 is hereby DISMISSED without prejudice, as defendant has voluntarily withdrawn it. Such withdrawal does not dispense with compliance with the one-year limitations for filing § 2255 motions should defendant decide to pursue his action at a later date.
(See Mem. Order filed Aug. 14, 2001, doc. 61 in criminal case.)
The Court could perhaps construe the argument that the Court toll for the time movant's prior motion to vacate remained pending in this Court as a request for equitable tolling. The Fifth Circuit Court of Appeals has held that "the statute of limitations in § 2255 may be equitably tolled in `rare and exceptional circumstances.'" See United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). The principles of equitable tolling "principally" apply, however, when the party seeking such tolling has been "actively misled . . . about the cause of action or is prevented in some extraordinary way from asserting his rights." See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). Movant's filing and subsequent voluntary dismissal of his initial motion to vacate does not warrant equitable tolling. The instant circumstances are neither rare nor exceptional. The circumstances, moreover, were completely within movant's control. He filed his initial motion to vacate and then moved to voluntarily dismiss it. No one misled movant about his cause of action or the ramifications of the statute of limitations. He was not prevented in any extraordinary way from asserting his rights. He is entitled to no equitable tolling during the pendency of his previously filed motion to vacate.
Movant also argues that equitable tolling is warranted due to the inadequacies of the prison law library and his unfamiliarity with the law. The Fifth Circuit Court of Appeals, however, has specifically rejected such arguments. In Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000), it held that "ignorance of the law or of statutes of limitations is insufficient to warrant tolling." 204 F.3d at 172. In Felder, furthermore, the Fifth Circuit specifically declined to follow dictum in Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999) which suggests that an inadequate prison library could provide a basis for equitable tolling in certain circumstances. See 204 F.3d at 172. "[A]n inadequate law library does not constitute a `rare and exceptional' circumstance warranting equitable tolling." Scott v. Johnson, 227 F.3d 260, 263 n. 3 (5th Cir. 2000). Movant's claim that the State transferred him to a facility with a less adequate law library does not make equitable tolling warranted.
Movant argues that he was unaware of the availability of post-conviction relief due to the ineffective assistance of his attorney. He also argues for equitable tolling because his attorney and the government led him to believe through the plea agreement that there were no possible avenues for collateral relief. Such arguments entitle movant to no equitable tolling for at least two reasons. First, the claimed unawareness is essentially attributed to movant's ignorance of the law, which the Court has already found does not warrant equitable tolling. The facts of this case, moreover, show that movant was aware of the availability of post-conviction relief, despite the alleged ineffective assistance of counsel and the plea agreement. He filed an appeal, but later voluntarily dismissed it. He also filed a motion to vacate that he voluntarily dismissed prior to filing the instant motion. These acts show that movant was not only aware of avenues for post-conviction relief, but that he pursued them.
In addition, movant argues for equitable tolling because of the government's failures to charge him in a proper information and disclose exculpatory information to him. The alleged failure to disclose exculpatory information fails to provide a basis for equitable tolling for the same reasons previously stated when discussing Edmond. The alleged failure to charge movant in a proper information likewise constitutes no basis for equitable tolling. Movant fails to explain how such failure affected his ability to timely file his motion to vacate.
Lastly, movant contends that the one-year time bar is inoperative under Rule 9 of the Rules Governing Section 2255 Proceedings for the United States District Courts, because he has exercised due diligence in ascertaining possible grounds for relief and any delay is excusable. The government, however, does not move for dismissal under Rule 9. Rather, it seeks dismissal for the failure to file the instant motion to vacate within the statutory period of limitations set forth in 28 U.S.C. § 2255. Rule 9 thus has no application in the present context. Accordingly, movant's argument has no persuasive effect.
D. Conclusion
For the reasons stated herein, the one-year statute of limitations contained within 28 U.S.C. § 2255 commenced on May 31, 2000. Movant did not file the instant motion to vacate within the limitations period. He provides no reason to toll the limitations period. Consequently, the Court grants the motion to dismiss and denies with prejudice the Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to 28 U.S.C. § 2255 as barred by the statute of limitations.