Way v. USA - 2255, No. 8:2007cv02183 - Document 1 (D. Md. 2011)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/15/11. [c/m 3/15/11] (cms, Deputy Clerk)
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Way v. USA - 2255 Doc. 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : ALAN LAVERTE WAY : v. : Civil Action No. DKC 07-2183 Criminal Case No. DKC 02-0210 : UNITED STATES OF AMERICA : MEMORANDUM OPINION Presently pending and ready for resolution is the motion of Petitioner Alan Laverte Way to vacate, set aside, or correct his sentence. now rules. (ECF No. 116). The issues are briefed and the court For the reasons that follow, the motion will be denied. I. Background Petitioner Alan Way related prison sentences. presently faces two separate but At the time of his sentencing in this case, Way had already received a 30-year sentence for possession with intent to distribute cocaine base and felon in possession of a firearm.1 year sentence 1 In this action, Way attempts to challenge a 30he received for conspiracy The court previously dismissed Section 2255 attacking that sentence. to Way s commit murder, motion under Dockets.Justia.com attempt to kill an officer of the United States Government, and solicitation to commit a crime of violence. A jury convicted Way of the above three counts on July 25, 2003. On October 20, 2003, this court sentenced Way to 360 months on count one (conspiracy to commit murder) and 240 months on the other two counts. The court also ordered that the counts would run consecutive to the sentence already imposed in the prior, related case. 02-048 (D.Md.). See United States v. Way, Criminal No. DKC Way appealed (with help from counsel), arguing that the jury should have been instructed on entrapment and that Way should have Guidelines range. affirmed. received a downward departure from his On July 14, 2004, however, the Fourth Circuit United States v. Way, 103 F.App x 716 (4th Cir. 2004). No petition for writ of certiorari was filed. In September 2005, Way filed filed a motion asking the court to appoint him counsel in both this action and the prior action. (ECF No. 113). In an order dated December 2, 2005, this court denied that motion and explained, Inasmuch as there are no matters before this court in this criminal case as to which the plaintiff would need counsel, the motion in this case will be denied. 2 (ECF No. 114).2 The court received no further The court also noted that the clerk had mistakenly docketed the motion as a petition under Section 2255. The order 2 correspondence or contact from Way concerning this case for almost two years. Then, in a petition dated August 9, 2007, Way challenged his sentence under Section 2255. (ECF No. 116). The petition evidently concedes its facial untimeliness, but suggests that the applicable equitably tolled one-year because statute Way s of limitations attorney duped should be him into believing that a petition would be filed on his behalf. The court then ordered the government to respond to Way s arguments particularly the equitable tolling issue. order also permitted Way 30 days to (ECF No. 117). file government responded on February 21, 2008. a reply.3 (ECF No. 124). The The Way did not file a reply. II. Standard of Review Title 28 U.S.C. § 2255 requires a petitioner to prove by a preponderance of the evidence 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 explained that, while there was a Section 2255 petition pending in case No. 02-048, there was no matter pending in this case. 3 The order satisfies the notice requirement outlined in United States v. Blackstock, 513 F.3d 128, 133 (4th Cir. 2008). 3 law. his A pro se movant such as Way is of course entitled to have arguments reviewed with appropriate consideration. Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978). See But if the Section 2255 motion, along with the files and records of the case, conclusively shows that he is not entitled to relief, a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. 28 U.S.C. § 2255(b). III. Analysis The Antiterrorism and Effective Death Penalty Act ( AEDPA ) imposes a one-year statute of limitations petitions brought by federal prisoners. on Section 2255 To be timely, a federal prisoner must file any motion to vacate, set aside, or correct his sentence within one year of the latest of the following dates: (1) the date on which conviction becomes final; the judgment of (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 4 been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). The only date relevant to this case is the first one the date on which the judgment of conviction became final. Finality attaches when [the Supreme] Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or certiorari petition expires. when the time for filing a Clay v. United States, 537 U.S. 522, 527 (2003); accord United States v. Sosa, 364 F.3d 507, 509 (4th Cir. 2004). July 14, 2004. The Fourth Circuit affirmed Way s conviction on He then had 90 days, until October 12, 2004, to file a petition for writ of certiorari. 28 U.S.C. § 2101(c). Because he did not, the one-year limitations period expired on October 12, 2005. Thus, Way s petition under Section 2255 comes almost two years after the expiration of the limitations period. Way period. speak in asks this court to equitably toll the limitations Because AEDPA s limitations provisions . . . do not jurisdictional terms or refer in any way to the jurisdiction of district courts[,] . . . § 2255 s limitation period is subject to equitable modifications such as tolling. United States v. Prescott, 221 F.3d 686, 688 (4th Cir. 2000) (quotation marks omitted). that the doctrine circumstances. See is Sosa, The Fourth Circuit has emphasized, to 364 be applied F.3d 5 at 512 in only limited (explaining that equitable tolling is only available in rare instances ); Prescott, 221 F.3d at 688 (characterizing equitable tolling as an extraordinary remedy that is only sparingly granted ); see also Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (stating, in Section 2254 context, that circumstances warrant equitable tolling ). rarely will To justify invoking this exceptional relief, Way must demonstrate (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time. F.3d at 512 (quotation marks omitted). Sosa, 364 Importantly, Way must also demonstrate that he pursued his rights diligently. Green v. Johnson, 515 F.3d 290, 304 (4th Cir. 2008). Way maintains that he presents exceptional circumstances resulting from his counsel s error. In particular, in his sworn Section 2255 petition, he states that he sent counsel a letter instructing him to file both a petition for a writ of certiorari and a Section 2255 petition should his appeal to the Fourth Circuit fail. Counsel then duped Way into believing that he would fulfill [Way s] desires. 4 4 It is somewhat unclear whether Way was duped when counsel failed to respond to Way s letter or if counsel actually told Way that he would file the Section 2255 petition. The unsworn memorandum accompanying the Section 2255 petition states that counsel vowed to movant that he would comply with Way s 6 Relying on the Fourth Circuit s decision in Rouse v. Lee, 339 F.3d 238, 250 (4th Cir. 2003), the government asserts that the type of attorney error Way alleges does not amount to an extraordinary circumstance. In Rouse, the Fourth Circuit reaffirmed the notion that attorney error generally does not amount to an extraordinary circumstances justifying equitable tolling. errors Id. at 248-49. of a The court further noted that the petitioner s counsel are attributable petitioner; consequently, they are not external. 50. The court attributable to reasoned a that client assistance, but there assistance in the can if be habeas counsel s they no errors the Id. at 249would not be to ineffective constitutionally ineffective context amounted to because there constitutional right to counsel in those proceedings. is no Id. On its face, Rouse would seem to prevent Way from invoking his attorney s dupe as an exceptional circumstance. the government submitted its opposition in this But after case, the Supreme Court issued its decision in Holland v. Florida, 130 S.Ct. 2549 (2010). That decision significantly undercuts the instructions, but there is no similar indication in the motion itself. 7 force of Rouse.5 equitable In Holland, the Supreme Court reaffirmed that tolling applies to AEDPA s one-year statute of limitations, and further concluded that attorney misconduct that amounts to more than a garden variety claim of attorney negligence can constitute a circumstance justifying equitable tolling. might Id. at 2562-64. arise when an In particular, such circumstances attorney fails to perform reasonably competent legal work, does not communicate with his client, does not implement reasonable client requests, does not client informed, or otherwise abandons the client. keep his Id. at 2564. Thus, if Way s allegations are true and his counsel ignored instructions to file a Section 2255, counsel s conduct might amount to exceptional circumstances. case, Way has not demonstrated Yet even if that were the the requisite degree of diligence. Holland did not change the standard of diligence required: a diligence, petitioner not equitable tolling. maximum must still feasible demonstrate reasonable diligence, to invoke Holland, 130 S.Ct. at 2565 (quotation marks 5 Holland addressed a state prisoner s claim for federal habeas relief under Section 2254. The decision s reasoning, however, applies with equal force in the Section 2255 context, and the Fourth Circuit has since applied it to Section 2255 claims. See, e.g., United States v. Terrell, No. 10-6886, 2010 WL 5376290, at *1 (4th Cir. Dec. 21, 2010); United States v. Oriakhi, No. 08-8224, 394 F.App x 976, 977-78 (4th Cir. 2010). 8 omitted) (finding reasonable diligence where petitioner wrote his attorney numerous times, contacted state courts, their clerks, and the state bar association, and filed a petition the very day he learned that the state of limitations had expired because of counsel s mistakes); accord Lora v. United States, No. DKC-02-4197, 2003 WL 23508099, at *2 (D.Md. Jan. 13, 2003) (applying reasonable diligence standard). Way has not done so here. If one assumes that Way s allegations are true, he reached out to counsel lengthly action. [sic] shortly period after of sentencing time before and then taking waited any a further Way did not apparently contact the court to find out if his counsel had filed a petition for writ of certiorari or a Section 2255 petition for a long period of time. He did not reach out to his counsel and ask how the case was proceeding. Such circumstances do not evidence reasonable diligence. See United States v. Padilla, 478 F.Supp.2d 865, 869 (E.D.Va. 2007) ( While petitioner asserts that his attorney failed to file a direct appeal or a § 2255 motion, this alone does not demonstrate that he has been diligently pursuing his rights and that some extraordinary circumstances stood in his way to prevent him from filing a timely petition. (quotation marks omitted)); see also United States v. Sells, 391 F.App x 700, 701 9 (10th Cir. 2010) ( Waiting over a year past the limitations deadline to determine whether counsel filed a motion does not support diligence. ); Anjulo-Lopez v. United States, 541 F.3d 814, 818-19 (8th Cir. 2008) (finding counsel s alleged failure to file an appeal did not justify equitable tolling where the defendant did not demonstrate any effort to check on the status of his case). As another district court has explained: Despite the supposed diligence in attempting to contact trial counsel, when these contacts went unheeded, he apparently never checked with the federal court system to find out whether an appeal had ever been filed. A reasonably diligent person in [the defendant] s position could and should have ascertained whether an appeal had been taken a short time after the appeal deadline had passed and well before the 18 months he maintains it took him to find this out. United States v. Arcoren, 633 F.Supp.2d 752, 759 (D.S.D. 2009). By October 12, 2004, it was public knowledge that Way s counsel had ignored Way s request to file a petition for writ of certiorari. understood At least as early as September 2005, Way apparently that he did not have any counsel acting on his behalf, as he then moved this court to appoint him such counsel. The order on that motion in December 2005 made clear that (1) he still would not receive counsel and (2) nothing had been filed in this case on his behalf up to that point. Nevertheless, he waited more than 20 additional months from that order to file 10 his petition. Even if Way had somehow remained under the (incredibly) mistaken belief that his counsel was going to file a Section 2255 petition for him, a reasonably diligent petitioner would have understood at the one-year mark October 2005 - that his counsel had failed to do so. When the one-year limitations period passed, Way simply continued to wait. He did so at his own peril, as he should have well understood, having already navigated the Section 2255 process in the prior related case.6 He cannot now invoke equitable tolling. Therefore, AEDPA s one-year limitations period bars Way s petition. IV. Conclusion For the foregoing reasons, Way s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 will be denied. Pursuant to Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C. §§ 2254 or 2255, the court is also required to issue or deny a certificate of appealability when it enters a final order adverse to the applicant. 6 A certificate of Way also states in his supporting memorandum that he did not have the ability to file a Section 2255 petition because he lacked the knowledge of legal jurisprudence to fulfill such a task. The fact that he was previously able to file a petition belies that claim. But even if it were true, lack of knowledge is not a basis for equitable tolling. Sosa, 364 F.3d at 512 ( [E]ven in the case of an unrepresented prisoner, ignorance of the law is not a basis for equitable tolling. ). 11 appealability is a jurisdictional prerequisite to an appeal from the court s earlier order. F.3d 652, 659 (4th Cir. 2007). United States v. Hadden, 475 A certificate of appealability may issue only if the applicant has made a substantial showing of the denial 2253(c)(2). a a constitutional right. 28 U.S.C. § Where a petition is denied on a procedural ground, certificate petitioner of can of appealability demonstrate both will not (1) issue that unless jurists of the reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quotation marks omitted). petition does not satisfy the above standard. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 12 Way s
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