Porter v. United States of America, No. 1:2007cv00005 - Document 2 (N.D. Iowa 2007)
Court Description: ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). A certificate of appealability is denied. Signed by Judge Linda R Reade on 1/17/07. (de) Modified on 1/17/2007 - mailed to pro se pltf. (de).
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Porter v. United States of America Doc. 2 Case 1:07-cv-00005-LRR Document 2 Filed 01/17/2007 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION EUGENE DARWIN PORTER, Plaintiff, No. C07-0005-LRR No. CR03-0030-LRR vs. UNITED STATES OF AMERICA, ORDER Defendant. __________________________ This matter comes before the court on Eugene Darwin Porter’s motion to vacate, set aside or correct sentence (Docket No. 1). Eugene Darwin Porter (“the movant”) filed his motion pursuant to 28 U.S.C. § 2255.1 For the following reasons, the movant’s 28 U.S.C. § 2255 motion shall be denied.2 In addition, a certificate of appealability shall be denied. 1 If a prisoner is in custody pursuant to a sentence imposed by a federal court and such prisoner claims “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, [the prisoner] may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255; see also Daniels v. United States, 532 U.S. 374, 377, 121 S. Ct. 1578, 149 L. Ed. 2d 590 (2001). 2 No response from the government is required because the motion and file make clear that the movant is not entitled to relief. See 28 U.S.C. § 2255; Rule 4(b), Rules Governing Section 2255 Proceedings. Similarly, an evidentiary hearing is not necessary. See id.; see also Engelen v. United States, 68 F.3d 238, 240-41 (8th Cir. 1995) (stating that district court may summarily dismiss a motion brought under 28 U.S.C. § 2255 without an evidentiary hearing “if (1) the . . . allegations, accepted as true, would not entitle the [movant] to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact”); United States v. Oldham, 787 F.2d 454, 457 (8th Cir. 1986) (stating that district court is given discretion in determining whether to hold an evidentiary hearing on a motion under 28 U.S.C. § 2255). Dockets.Justia.com Case 1:07-cv-00005-LRR Document 2 Filed 01/17/2007 Page 2 of 8 I. BACKGROUND On April 14, 2003, the government filed a criminal complaint against the movant. On April 25, 2003, the grand jury returned and the government filed an indictment against the movant. On June 6, 2003, the government filed a superceding indictment against the movant. On November 10, 2003, the movant’s jury trial commenced. On November 14, 2003, the jury found the movant guilty of all of the counts contained in the superceding indictment.3 On November 20, 2003, the movant filed a motion for a new trial. On March 8, 2004, the court denied the movant’s motion for a new trial. On May 26, 2004, the court sentenced the movant to 180 months imprisonment (120 months on count one, 60 months on count two through count six, terms on count two through count six to be served concurrently with each other and consecutive to count one) and 3 years supervised release. On May 27, 2004, judgment entered against the movant. On June 3, 2004, the movant appealed. On June 2, 2005, the Eighth Circuit Court of Appeals affirmed the movant’s convictions and sentence. See United States v. Porter, 409 F.3d 910 (8th Cir. 2005). Although the movant sought further review, the Supreme Court denied the movant’s petition for a writ of certiorari on October 17, 2005. See Porter v. United States, 126 S. Ct. 504, 163 L. Ed. 2d 382 (2005). On February 8, 2006, the movant filed a motion for proof of claim. On March 2, 2006, the court denied the movant’s motion for proof of claim. On March 2, 2006, April 3, 2006, April 10, 2006 and April 21, 2006, the movant filed additional pleadings and/or petitions. On May 2, 2006, the court denied without prejudice the pleadings and/or petitions that the movant submitted, and it ordered the Clerk of Court to send the movant a 28 U.S.C. § 2255 form. On May 3, 2006, the movant filed another petition. On May, 3 The conduct charged in count one of the superceding indictment is in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). The conduct charged in count two, count three, count four, count five and count six of the superceding indictment is in violation of 42 U.S.C. § 408(a)(7)(B). 2 Case 1:07-cv-00005-LRR Document 2 Filed 01/17/2007 Page 3 of 8 8, 2006, the court denied that petition for the reasons stated in its order dated May 2, 2006 order. On May 22, 2006, the movant filed another motion. On July 7, 2006, the court denied that motion and once again reminded the movant that he must file a motion pursuant to 28 U.S.C. § 2255 if he desires to attack his criminal conviction. On July 28, 2006, the movant filed several more papers. On July 31, 2006, the court construed his papers as a motion to reconsider and denied it. On January 16, 2007, the movant filed the instant motion. In his 28 U.S.C. § 2255 motion, the movant challenges his conviction and resulting sentence based on alleged violations of the United States Constitution. Specifically, the movant claims that he was deprived of an impartial jury, fraud occurred, counsel provided ineffective assistance and the court lacked jurisdiction. The court now turns to consider the movant’s 28 U.S.C. § 2255 motion. II. ANALYSIS A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 28 U.S.C. § 2255 allows a prisoner in custody under sentence of a federal court to move the sentencing court to vacate, set aside or correct a sentence. To obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See Hill v. United States, 368 U.S. 424, 426-27, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962) (citing 28 U.S.C. § 2255). Although it appears to be broad, 28 U.S.C. § 2255 does not provide a remedy for “all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979). Rather, 28 U.S.C. § 2255 is intended to redress only “fundamental defect[s] which inherently [result] in a complete miscarriage of justice” and “omission[s] inconsistent with the rudimentary demands of fair procedure.” 3 Case 1:07-cv-00005-LRR Document 2 Filed 01/17/2007 Page 4 of 8 Hill, 368 U.S. at 428; see also United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised for the first time on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.”) (citing Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987)). A collateral challenge under 28 U.S.C. § 2255 is not interchangeable or substitutable for a direct appeal. See United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982) (making clear a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service for an appeal). Consequently, “[a]n error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Id. (internal quotation marks and citation omitted). In addition, movants ordinarily are precluded from asserting claims they failed to raise on direct appeal. See McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001). “A [movant] who has procedurally defaulted a claim by failing to raise it on direct review may raise the claim in a [28 U.S.C. §] 2255 proceeding only by demonstrating cause for the default and prejudice or actual innocence.” Id. (citing Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)); see also Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003) (“[T]he general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the [movant] shows cause and prejudice.”). “‘[C]ause’ under the cause and prejudice test must be something external to the [movant], something that cannot be fairly attributed to him.” Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (emphasis in original). If a movant fails to show cause, a court need not consider whether actual prejudice exists. McCleskey v. Zant, 499 U.S. 467, 501, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). Actual innocence under the actual innocence test “means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623-24; 4 Case 1:07-cv-00005-LRR Document 2 Filed 01/17/2007 Page 5 of 8 see also McNeal, 249 F.3d at 749 (“[A movant] must show factual innocence, not simply legal insufficiency of evidence to support a conviction.”).4 B. Timeliness Under the AEDPA and 28 U.S.C. § 2255 The AEDPA contains a one year period of limitation during which a 28 U.S.C. § 2255 motion must be filed.5 The statute of limitation begins to run from the latest of four circumstances. The first of these circumstances is the date on which the judgment of conviction became final. Here, the movant’s conviction became “final” on October 17, 2005–the day that the Supreme Court denied his petition for a writ of certiorari. See Clay v. United States, 537 U.S. 522, 527, 123 S. Ct. 1072, 155 L. Ed. 2d 88 (2003) (“Finality attaches when [the United States Supreme Court] affirms a conviction on the merits on 4 The procedural default rule applies to a conviction obtained through trial or through the entry of a guilty plea. See United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998); Walker v. United States, 115 F.3d 603, 605 (8th Cir. 1997); Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997); Thomas v. United States, 112 F.3d 365, 366 (8th Cir. 1997); Reid v. United States, 976 F.2d 446, 448 (8th Cir. 1992). 5 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. 28 U.S.C. § 2255. 5 Case 1:07-cv-00005-LRR Document 2 Filed 01/17/2007 Page 6 of 8 direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.”). Given such date, the movant needed to file the instant motion by no later than October 17, 2006. The movant did not file his 28 U.S.C. § 2255 motion until January 16, 2007, which is well beyond the last day it properly could have been filed. Further, the movant’s situation does not fall under any of the remaining three timeliness provisions set forth in 28 U.S.C. § 2255. The Eighth Circuit Court of Appeals has held that the doctrine of equitable tolling applies to 28 U.S.C. § 2255 motions. United States v. Martin, 408 F.3d 1089, 1092-93 (8th Cir. 2005). However, equitable tolling only applies “where ‘extraordinary circumstances’ beyond a prisoner’s control prevent timely filing.” Id. at 1093 (citing Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001), Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000), and Paige v. United States, 171 F.3d 559, 561 (8th Cir. 1999)). “Ineffective assistance of counsel, where it is due to an attorney’s negligence or mistake, has not generally been considered an extraordinary circumstance in this regard.” Id. (citing Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002), and Rouse v. Lee, 339 F.3d 238, 248 (4th Cir. 2003)); see also Kreutzer, 231 F.3d at 463 (holding “counsel’s confusion about the applicable statute of limitations does not warrant equitable tolling”). The movant does not offer any valid excuse for failing to timely file his 28 U.S.C. § 2255 motion. Therefore, the court finds that the movant’s situation does not fall within the limitation period allowed by 28 U.S.C. § 2255. In sum, the claims that the movant asserts could have been asserted before a judgment of conviction was entered, on direct appeal or in a timely 28 U.S.C. § 2255 motion. “‘The one year period provided him with reasonable opportunity to file for relief; and if that time period has expired, it is the result of his own doing and not due to any inadequacy in the statute.’” United States v. Lurie, 207 F.3d 1075, 1078 (8th Cir. 2000) (quoting Charles v. Chandler, 180 F.3d 753, 755 (6th Cir. 1999)). Although this is a 6 Case 1:07-cv-00005-LRR Document 2 Filed 01/17/2007 Page 7 of 8 harsh rule, it is the law. Accordingly, the movant’s 28 U.S.C. § 2255 motion shall be denied. C. Certificate of Appealability In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. § 2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue only if a movant has made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523. To make such a showing, the issues must be debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)); see also Miller-El, 537 U.S. at 335-36 (reiterating standard). Courts reject constitutional claims either on the merits or on procedural grounds. “‘[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000)). When a federal habeas petition is dismissed on procedural grounds without reaching the underlying constitutional claim, “the [movant must show], at least, that jurists of reason would find 7 Case 1:07-cv-00005-LRR Document 2 Filed 01/17/2007 Page 8 of 8 it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” See Slack, 529 U.S. at 484. Having thoroughly reviewed the record in this case, the court finds that the movant failed to make the requisite “substantial showing” with respect to the claims that he raised in his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Because he does not present a question of substance for appellate review, there is no reason to grant a certificate of appealability. Accordingly, a certificate of appealability shall be denied. If he desires further review of his 28 U.S.C. § 2255 motion, the movant may request issuance of the certificate of appealability by a circuit judge of the Eighth Circuit Court of Appeals in accordance with Tiedeman, 122 F.3d at 520-22. IT IS THEREFORE ORDERED: 1) The movant’s 28 U.S.C. § 2255 motion (Docket No. 1) is DENIED. 2) A certificate of appealability is DENIED. DATED this 17th day of January, 2007. 8
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