Opinion
Civil No. 04-3160 ADM/JSM.
August 18, 2004
F. Clayton Tyler, Esq., Minneapolis, MN, on behalf of Petitioner Wesley Eugene Brooks.
Michael W. Ward, Assistant United States Attorney, Minneapolis, MN, on behalf of Respondent United States of America.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to the Objections of Petitioner Wesley Eugene Brooks ("Petitioner") [Docket No. 3] to the July 15, 2004 Report and Recommendation ("RR") of Magistrate Judge Janie S. Mayeron [Docket No. 2] to dismiss Petitioner's Petition for Writ of Habeas Corpus [Docket No. 1].
The RR dismisses Petitioner's Petition for Writ of Habeas Corpus for want of jurisdiction. The factual and procedural background in this matter is set forth in the RR and is incorporated by reference for purposes of the present Objections. For the reasons set forth below, the Objections are denied and the RR is adopted.
II. DISCUSSION
The district court must undertake an independent, de novo, review of those portions of a RR to which objection is made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2).Petitioner objects to the RR on four grounds. Petitioner first objects to the finding that this Court does not have jurisdiction to hear his Petition for Writ of Habeas Corpus. Second, Petitioner objects to the finding that his Petition is barred by the exclusive remedy rule. Third, Petitioner objects to the RR's finding that the statute of limitation has run on the filing of the Petition. Finally, Petitioner argues that his 28 U.S.C. § 2241 Habeas Petition should be granted, or, in the alternative, that his claim should be construed as a motion brought under 28 U.S.C. § 2255 and reviewed on the merits. Based on the following, the recommendations of the RR are adopted. As all of Petitioner's objections are closely intertwined, they will be analyzed together.
A. Jurisdiction Over § 2241 Petitions and § 2255 Motions
Petitioner objects to the RR's finding that no jurisdiction exists under either § 2241 or § 2255 for this Court to hear Petitioner's Petition. The RR correctly states that a prisoner can maintain a collateral challenge to his conviction or sentence only by filing a motion with the trial court pursuant to 28 U.S.C. § 2255. RR at 3; see also Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003). In fact, based on the exclusive remedy rule, a prisoner may not collaterally challenge a conviction or sentence with a § 2241 habeas petition. Hill, 349 F.2d at 1091. Unless a Petitioner can affirmatively demonstrate that the remedy under § 2255 is "inadequate or ineffective to test the legality of . . . [his] detention," a court does not have jurisdiction to hear a § 2241 petition. DiSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) (per curiam) (quoting 28 U.S.C. § 2255). In certain limited instances, a § 2241 petition barred by the exclusive remedy rule may converted to a § 2255 motion.
In the instant case, Petitioner is collaterally attacking his sentence. Therefore, his Petition should be styled as a § 2255 motion. However, Petitioner's motion is time-barred by the one year statute of limitations set forth in § 2255. The RR accurately calculates that Petitioner's one year statute of limitations on any § 2255 claim began to run on July 3, 2000, expiring one year later on July 3, 2001. RR at 5. As a result, Petitioner has missed the filing deadline by more than three years, and his Petition, therefore, must be denied. Id. B. Equitable Tolling of 28 U.S.C. § 2255 and Ineffective Assistance of Counsel
Petitioner argues that despite forfeiting his right to collaterally challenge his sentence under § 2255 by the expiration of the § 2255 statute of limitations, his Petition should be allowed to proceed as a § 2255 motion. Petitioner argues that, under the principle of equitable tolling, he should be allowed to file a § 2255 motion due to the alleged ineffective assistance of counsel he received prior to his plea agreement. Petitioner also relies on ineffective assistance of counsel in arguing that the waiver of his § 2255 rights was ineffective.
1. Equitable Tolling
Petitioner claims that the statute of limitations in his case should be equitably tolled, because he did not learn his counsel was ineffective until July, 2003. Petitioner's argument fails for two reasons. First, Petitioner cannot demonstrate the existence of extraordinary circumstances that prevented him from timely filing his Petition. "Equitable tolling is proper only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000). The Kreutzer Court explains that even mental incompetence at the time of a guilty plea is not sufficient to equitably toll the statute of limitations on a habeas petition.See id. In the instant case, Petitioner filed his Habeas Petition nearly three years after the statute of limitations had expired. RR at 5. Petitioner claims that he exercised reasonable diligence in having other attorneys review his case to determine whether his guilty plea was appropriate. When one attorney suggested that a search issue might exist as to certain evidence in the case, Petitioner filed this Petition. There is no explanation, however, as to why years elapsed prior to attorney review of his case. Moreover, no evidence has been proffered to suggest that Petitioner could not have had his case reviewed within the statute of limitations. See Paige v. United States, 171 F.3d 559, 561 (8th Cir. 1999) (reasoning that the situation at bar was within the prisoner's control in denying his request for equitable tolling). Quite simply, the facts do not rise to the requisite level of extraordinary circumstances necessary to equitably toll the statute of limitations, and therefore, Petitioner's Petition must be denied.
Second, even if this Court were to equitably toll the statute of limitations, it is not clear that the Petitioner timely filed his Petition. Petitioner alleges that he first learned of his ineffective assistance of counsel claim when he received a letter sent by Gary Bryant-Wolf. Pet'rs Objections at 4. The letter in question was sent on June 29, 2003. Id. Petitioner did not file his Habeas Petition, however, until July 6, 2004, over a year after the date upon which the letter was sent. Petitioner avers, without evidence, that the letter "would have been received at least a week later considering that [Petitioner] received this letter while in prison." Id. Petitioner proffers no evidence, however, to allow this Court to make that determination. As a result, even if Petitioner could demonstrate the extraordinary circumstances required for application of equitable tolling, it is not clear that he timely filed his Petition. Therefore, the Petition must be denied.
2. Ineffective Assistance of Counsel
Finally, Petitioner's claims of ineffective assistance of counsel do not save his Petition. Petitioner argues that the attorney who represented him at the time of his guilty plea failed to investigate his case. As a result, Petitioner made an uninformed decision to plead guilty. Petitioner claims that if his attorney had investigated his case, he would have learned that an argument may have existed as to the validity of an inventory search of Petitioner's car, which led to Petitioner's prosecution. Petitioner does not describe the evidence at issue, nor does he discuss whether it would have changed the outcome of his prosecution.
It should be noted that Petitioner's Petition does not detail his ineffective assistance of counsel claim; as a result, Judge Mayeron had no opportunity to make a substantive review of this claim.
In Strickland v. Washington, the Supreme Court set forth the standard for ineffective assistance of counsel claims. 466 U.S. 668 (1984). To properly demonstrate a claim, a defendant must show that his attorney's representation fell below an objective standard of reasonableness. Id. at 687-88. Additionally, the defendant must make a showing of prejudice; that is, that a reasonable probability exists that but for the attorney's errors, the result of the proceeding would have been different. Id. at 694. The Supreme Court expanded the Strickland test to guilty pleas in the case of Hill v. Lockhart, 474 U.S. 52 (1985). The Court stated in Hill:
For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.Id. at 370. Here, even assuming, arguendo, that Petitioner has demonstrated that his attorney's representation fell below an objective standard of reasonableness, Petitioner has not established prejudice. As noted above, Petitioner claims that, had his counsel informed him of the potential inventory search issue, he would not have pled guilty. However, Petitioner has not proffered any evidence which would allow this Court to believe the inventory search was improper. Petitioner does not argue what evidence was at issue or how it may have affected the outcome of a theoretical trial. This is an insufficient showing of prejudice. As a result, any claims by Petitioner on the basis of ineffective assistance of counsel must be denied.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Judge Mayeron's RR [Docket No. 2] is ADOPTED in its entirety;
2. Petitioner's Objections [Docket No. 3] are DENIED; and
3. Petitioner's Petition for Writ of Habeas Corpus [Docket No. 1] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.