Opinion
Case No. 3:08-cr-041 Also 3:12-cv-397
02-26-2013
UNITED STATES OF AMERICA, Plaintiff, v. EVERARDO RODRIQUEZ-VILCHIS, Defendant.
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
ORDER WITHDRAWING SUPPLEMENTAL REPORT AND
RECOMMENDATIONS EXCEPT AS TO GROUND FIVE AND
ORDERING THE UNITED STATES TO FILE AN ANSWER
This § 2255 case is before the Court on Defendant's Objections (Doc. No. 215) to the Magistrate Judge's Supplemental Report and Recommendations (the "Report" Doc. No. 214). Judge Rose has again recommitted the matter to the Magistrate Judge, at the Magistrate Judge's request, for reconsideration in light of the Objections (Doc. No. 217).
The § 2255 Motion contains five grounds for relief. The first is a claim for equitable tolling as to Grounds Two, Three, and Four. Ground Five purports to arise under Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012); and Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012). Because those cases were decided in March, 2012, Defendant does not need equitable tolling as to Ground Five because it was filed within a year of those decisions.
The original Report in this case (Doc. No. 210) concluded that Defendant was not entitled to equitable tolling and that his Motion did not state a claim for relief under Frye or Lafler, which in any event do not apply retroactively to cases on collateral review. The Report therefore recommended dismissal of the Motion with prejudice on initial review under Rule 4 of the Rules Governing § 2255 Cases and denial of a certificate of appealability.
Petitioner's first set of Objections (Doc. No. 211) claimed denial of due process in failing to grant equitable tolling on the basis of Defendant's being Hispanic (Doc. No. 211). The Magistrate Judge then withdrew the original Report and gave Defendant an opportunity to file additional facts showing his entitlement to equitable tolling by February 1, 2013 (Doc. No. 213). When nothing had been filed in response to that Order by February 11, 2013, the Magistrate Judge reinstated the original Report (Supplemental R&R, Doc. No. 214).
Defendant now objects that he did in fact file a "reply/response" to that Order (Objection, Doc. No. 215, PageID 730-731). Inconsistent with the claim that a response was filed, Defendant alleges that the prison legal mail room at his place of incarceration (Gilmer FCI in Glenville, West Virginia) is under investigation by the Postmaster General "due to multiple complaints of prisoners legal and personal mail disappearing and/or not reaching their designation [sic]." In other words, Defendant seems to be claiming that he did file a reply; but if the reply did not reach the Court, it is because it was interfered with by employees of the Bureau of Prisons.
Attempting to prove that he sent the reply/response to the Court, Defendant attaches Appendix B consisting of two pages: 1. Certificate of Service dated January 13, 2013, reciting that Defendant's "cover letter, motion to supplement 2255 motion, affidavit of Everardo Rodriquez-Vilchis, and affidavit of Daniel Sanchez Sr." were sent by first class mail to the Clerk and to William F. Schenck, Assistant to United States Attorney, on January 13, 2013 (PageID 739); and 2. Cover letter dated January 11, 2013, directed to the Clerk and purportedly enclosing the motion to supplement, the two affidavits, and the certificate of service (PageID 740).
In addition, the Certificate of Service on the Objections (PageID 733) claims that the present Objections are accompanied by "an additional copy of defendant's reply/response dated Jan. 13, 2013" was mailed to the Clerk by certified mail on February 15, 2013, but no such "additional copy" was received by the Clerk with the Objections.
Upon receipt of the Defendant's most recent set of Objections, the Magistrate Judge inquired of the United States Attorney's Office whether it had received the copy directed to Mr. Schenck. That Office found two documents, both received shortly after noon on January 16, 2013. One was addressed to Mr. Schenck at "602 Federal Bldg., 200 West Second Street, Dayton, Ohio 45402" and one was addressed to "U.S. Dist. Court, 602 Federal Bldg." Both were put into the United States Attorney's files. Thus the reason why Defendant's January 11, 2013, document was never before filed with the Clerk was that it was misaddressed by Mr. Rodriquez-Vilchis or by Mr. Sanchez on his behalf. Defendant can verify this for himself by examining the copy of his January 11, 2013, cover letter which appears at PageID 740 and bears the address of the Clerk as Room 602. The Clerk's Office is at Room 712. Defendant must direct all future filings to that address.
Mr. Schenck himself has left federal service.
Having obtained the document, the Court has ordered it to be filed as "Defendant's Motion to Supplement his 2255 Motion" and it is now docketed (as of February 25, 2013), at Doc. No. 219. Based on that filing, the Supplemental Report (Doc. No. 214) is WITHDRAWN except as to Ground Five which is still recommended for dismissal because Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), and Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), do not apply retroactively.
It does not plainly appear from the face of the 2255 Motion, the annexed exhibits, the supplement just filed, and the prior proceedings in the case that Defendant is not entitled to relief. Accordingly, it is hereby ORDERED that the United States Attorney shall, not later than April 25, 2013, file an answer conforming to the requirements of Rule 5 of the Rules Governing §2255 Cases. Specifically, said answer shall respond to each allegation made in the Motion, raise any affirmative defenses available to the United States, and state whether Defendant has previously received an evidentiary hearing on any of the matters he now raises or whether he is entitled, in the Government's view, to an evidentiary hearing in this proceeding. By withdrawing the prior Reports, the Magistrate Judge is not purporting to rule on Defendant's claim of equitable tolling, but allowing that matter to be litigated in the ordinary course of the case.
Defendant may, not later than twenty-one days after the Answer is filed, file and serve a reply or traverse to the Answer. If the Government files a motion to dismiss, Defendant's time to file a memorandum in opposition will likewise be twenty-one days from service, as provided in S. D. Ohio Civ. R. 7.2(a).
Defendant relies in part on communications between himself and his attorney which are not of record in the case. Defendant should understand that a claim of ineffective assistance of counsel impliedly waives the privilege as to any attorney-client communications relevant to any such claim. In re Lott, 424 F.3d 446 (6th Cir. 2005); Tasby v. United States, 504 F.2d 332 (8th Cir. 1974); Randall v. United States, 314 F.2d 800 (10th Cir. 1963); United States v. Ballard, 779 F.2d 287 (5th Cir. 1986); Laughner v. United States, 373 F.2d 326 (5th Cir. 1967); Crutchfield v. Wainwright, 803 F.2d 1103 (11th Cir. 1986).
Michael R. Merz
United States Magistrate Judge