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denying as untimely § 2255 motion filed two years after expiration of limitation period
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CRIMINAL NO. 1:CR-02-187-01.
August 20, 2007
MEMORANDUM
I. Introduction
Defendant Marcel L. Brown, an inmate at Federal Correctional Institution-Schuylkill, has filed a motion pursuant to 28 U.S.C. § 2255 (doc. 579). We conducted an initial review of the motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings and required the government to respond to the motion. (doc. 581). The government has filed a response (doc. 588) and Brown has filed a brief in reply (doc. 593), making the motion ripe for consideration. Because the record conclusively shows that Brown's motion is not within § 2255's one-year limitation, we will deny his motion without an evidentiary hearing.
II. Background
Brown entered a guilty plea for narcotics and money laundering offenses and was sentenced on January 26, 2004, to consecutive terms in prison totaling 216 months. His sentence included a 144 month term of imprisonment for conspiracy to traffic in more than 50 grams of crack cocaine and more than five kilograms of cocaine hydrochloride, in violation of 21 U.S.C. § 846, a 72 month term of imprisonment for distribution and possession with intent to distribute more than 50 grams of crack cocaine and more than five kilograms of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), and an order of forfeiture for use of a communication facility to facilitate drug trafficking, in violation of 21 U.S.C. § 843(b). Brown's sentence was reduced to 216 months from the guideline range of 360 months, after we granted the government's motion requesting a 40 percent downward departure from the sentencing guidelines' range for Brown's substantial assistance. Brown did not appeal his sentence.
On March 7, 2006, the government filed a motion to reduce Brown's sentence pursuant to Federal Rule of Criminal Procedure 35(b) for substantial assistance in the investigation or prosecution of another. The Court granted this motion on March 29, 2006, and reduced Brown's sentence by 48 months to 168 months' imprisonment. (doc. 538). Brown moved for reconsideration of the order reducing his sentence, which we denied on November 17, 2006. (doc. 552). Brown then filed this § 2255 motion.
Prior to filing the Rule 35(b) motion, the government filed a motion requesting that we extend the time period for filing such a motion. We granted the government's motion.
III. Discussion
Brown makes a number of claims in his § 2255 motion. First, he contends that he was wrongfully denied a three-level reduction for acceptance of responsibility pursuant to § 3E1.1(a) and (b) of the United States Sentencing Guidelines. Second, Brown sets forth a number of ineffective assistance of counsel claims. Third, Brown claims that he was sentenced "under an unconstitutional mandatory application of the United States [federal] Sentencing Guidelines." Fourth, Brown claims that he was unlawfully sentenced to a term of supervised release.
Section 3E1.1 of the United States Sentencing Guidelines provides:
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
In opposing the § 2255 motion, the government focuses on the timeliness of the motion. In reply, Brown contends that the motion is timely for four different reasons. First, the one-year limitation for § 2255 motions did not begin until we reduced Brown's sentence for substantial assistance to the government. Second, the government's motion to reduce his sentence was an impediment to filing a § 2255 motion and, pursuant to § 2255(2), changed the starting point for the one-year filing limitation. Third, pursuant to § 2255(4), the one-year limitation should commence on the date that Brown could have used due diligence to discover the facts underlying his claims. Fourth, Brown's motion is timely because it is subject to equitable tolling. We will address each argument in order.
A. The Date on Which Brown's Judgment of Conviction Became Final
With respect to the starting date for calculating the one-year limitation for filing a habeas motion, § 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.
Brown claims that his conviction was not "final," for purposes of § 2255(1) until March 29, 2006, the date we entered an order granting the government's Rule 35(b) motion and reducing Brown's sentence to 168 months' imprisonment. (doc. 593, pp. 13-15). According to Brown, "it is unreasonable to assume from the record in this case that the Petitioner could have somehow perceived that his sentence was final where the Government, as well as Petitioner's counsel, continued to file Motions in that regard, and the Court accepetd [sic] and exercised jurisdiction over them until, at least, October 6, 2006." Id. at 16. Therefore, Brown argues that his § 2255 motion, filed on March 20, 2007, was within one year of March 29, 2006, and was timely. Id.
In response, the government contends that Brown's § 2255 motion is untimely as it was filed more than two years after the expiration of the one-year limitation. (doc. 588, p. 7). Specifically, the Government argues that the one-year limitation period began on February 9, 2004, ten days after Brown's sentencing, upon the expiration of his time to file an appeal. Id. at 6 (quoting Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999)). Additionally, according to the government, the finality of Brown's conviction was not affected by the subsequent Rule 35(b) motion and reduction of Brown's sentence for providing substantial assistance to the government. Citing 18 U.S.C. § 3582(b), the Government claims that a judgment of conviction is "final" on the date it is imposed, notwithstanding the possibility of modification at a later date through a Rule 35(b) motion. Id. at 8. Therefore, Brown's motion, which was filed on March 19, 2007, was beyond the one-year deadline imposed by § 2255. Id.
We agree with the government's analysis. As noted, a § 2255 motion must be filed within one year of the date on which the defendant's conviction becomes final. If the defendant does not pursue a direct appeal, the conviction and sentence is final upon the expiration of the time for filing the direct appeal. Kapral, 166 F.3d at 577. Here, we entered judgment and sentenced Brown on January 26, 2004. (doc. 416). Brown then had ten days, excluding weekends, to take a direct appeal. Fed.R.App.P. 4(b)(1)(A). Section 2255's one-year limitation began on February 9, 2004, the expiration of the ten-day window for appeal, and Brown had until February 9, 2005, to file his § 2255 motion. By filing his § 2255 motion on March 19, 2007, Brown was well beyond the one-year limitation.
We also conclude that for purposes of § 2255's one-year limitation, the government's filing of a post-conviction motion which results in a modified or reduced sentence does not affect the finality of the original judgment of conviction. 18 U.S.C. § 3582(b) provides, in relevant part: "Notwithstanding the fact that a sentence to imprisonment can subsequently be — (2) corrected pursuant to the provisions of rule 35 of the Federal Rules of Criminal Procedure and section 3742 . . . a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes." The Third Circuit does not appear to have considered Brown's claim; however, other circuits have concluded that § 3582(b) clearly states that resentencing pursuant to a Rule 35(b) motion does not affect the date on which the judgment of conviction became "final." See United States v. Sanders, 247 F.3d 139, 142-44 (4th Cir. 2001); Reichert v. United States, 101 Fed. Appx. 13, 13-14 (6th Cir. 2004) (nonprecedential); United States v. Schwartz, 274 F.3d 1220, 1223-24 (9th Cir. 2001).
The Fourth Circuit addressed this precise issue in Sanders. As with Brown, the defendant in Sanders filed a § 2255 motion more than a year after his original sentence but less than a year from his resentencing pursuant to a Rule 35(b) motion. Sanders, 247 F.3d at 142. The Fourth Circuit, in rejecting Sanders' argument that the one-year limitation did not begin until he was resentenced, examined the plain text of the statute and concluded: "Congress did not intend for Fed.R.Crim.Pro. 35(b) motions to prevent convictions from becoming final for § 2255 purposes. The plain language of 18 U.S.C. § 3582(b) establishes that a modification of a sentence does not affect the finality of a criminal judgment." Id. at 142-43. We agree with the Fourth Circuit's reasoning in Sanders and conclude that the government's Rule 35(b) motion and subsequent resentencing did not affect the finality of Brown's conviction. Having failed to file his § 2255 motion within one year of the expiration of his time for appeal, Brown's motion is beyond § 2255's statute of limitation.
B. Applicability of § 2255(2) and § 2255(4) to Brown's Habeas Motion
Brown also appears to argue that the one-year limitation did not begin upon expiration of his time for appeal because he satisfies § 2255(2) and § 2255(4). Section 2255(2) provides that "The limitation period shall run from the latest 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[.]" Brown claims that the government's December 17, 2004, motion requesting an extension for filing a Rule 35(b) motion qualifies as an impediment for purposes of § 2255(2). (doc. 593, p. 17). With respect to § 2255(4), which provides that the one-year limitation begins on "the date on which the facts supporting the claim . . . could have been discovered through the exercise of due diligence," Brown contends it would have been "virtually impossible" to be aware of the facts supporting his § 2255 claim because the claim, in part, concerns the March 29, 2006, order reducing his sentence. Id.
We reject Brown's contention that his claims are not time-barred because the one-year limitation is governed by § 2255(2). This subsection starts the limitation period on the date on which the government's unconstitutional conduct, which impedes the defendant's ability to file the § 2255 motion, is removed. The government's motion for additional time to file a Rule 35(b) motion, however, is not unconstitutional or illegal conduct. Federal Rule of Criminal Procedure 35(b) allows a court to reduce a defendant's sentence for substantial assistance more than one year after sentencing if, among other reasons, the information provided by the defendant did not become useful until more than one year after sentencing. Fed.R.Crim.P. 35(b)(2)(B). Here, the government filed a motion seeking additional time on this basis. As such, the motion is not unconstitutional or illegal, and it is not an "impediment" which would change the start date for § 2255's one-year limitation.
We also reject Brown's claim pursuant to § 2255(4) that the one-year limitation should begin on the date in which the facts underlying the claim could have been discovered through due diligence. As discussed infra, the circumstances leading to all but one of Brown's claims arose from his sentencing hearing. We have already considered and rejected the merit of the claim concerning circumstances occurring after the sentencing hearing.
C. Equitable Tolling
Finally, Brown argues that the circumstances warrant equitable tolling of the one-year limitation. (doc. 593, p. 14). Brown claims that (1) the government has actively misled him, (2) he has in some extraordinary way been prevented from asserting his rights, and (3) he timely asserted his rights mistakenly in the wrong forum. Id. at 15-16 (quoting Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)).
We conclude that Brown's § 2255 motion is not subject to equitable tolling. The one-year limitation in § 2255 is not jurisdictional and, therefore, is subject to equitable tolling. United States v. Bendolph, 409 F.3d 155, 164 (3d Cir. 2005) (en banc). Equitable tolling is possible
only when the principle of equity would make the rigid application of a limitation period unfair. Generally this will occur when the petitioner has in some extraordinary way been prevented from asserting his or her rights. The petitioner must show that he or she exercised reasonable diligence in investigating and bringing [the] claims. Mere excusable neglect is not sufficient.Fahy, 240 F.3d at 244 (quoting Miller v. New Jersey Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998)). Circumstances which permit equitable tolling include the following: "if (1) the defendant has actively misled the plaintiff, (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum." Id.
Brown does not provide details in support of his equitable tolling claim; however, the § 2255 motion appears to argue that we should equitably toll the one-year limitation because it was impossible for him to discover the bases for his sentencing claims until our March 29, 2006, order reducing his sentence. (doc. 593, p. 17). We find, however, that all of Brown's claims, except one, arose from his sentencing, not the subsequent order reducing his sentence for providing substantial assistance. Brown's ineffective assistance of counsel claims regarding: the failure to investigate possible defenses, the failure to pursue an acceptance of responsibility reduction, and the failure to object to the drug weight calculations in the Pre-Sentence Report all concern counsel's conduct at or prior to sentencing. Additionally, Brown's claims that the court failed to give him an acceptance of responsibility sentence reduction, that he was sentenced under an unconstitutional mandatory application of the sentencing guidelines, and that the court improperly sentenced him to a term of supervised release also concern activities which occurred at sentencing. Finally, although Brown's claim that counsel was ineffective for using the wrong motion to challenge the denial of an acceptance of responsibility reduction arose after sentencing, we considered and rejected this claim on a prior occasion. See doc. 552, p. 4. Consequently, we reject Brown's argument that he could not have exercised reasonable diligence in investigating his § 2255 claims because they did not arise until the court granted the government's Rule 35(b) motion. As Brown has not shown extraordinary circumstances preventing him from exercising his rights, we will not equitably toll the one-year limitation for the § 2255 motion.
We considered Brown's claim that he should have received an acceptance of responsibility reduction when we evaluated his motion in opposition to the government's Rule 35(b) motion. (doc. 552). There, after determining that the motion was untimely and it was not the proper means for raising such an argument, we explained that by adopting the findings and sentencing guideline application of the pre-sentence report, we denied any downward adjustment for acceptance of responsibility. Id. at 4. We also noted that Brown's plea agreement explicitly provided that we were not bound by the terms of the agreement, and that our failure to grant the downward adjustment would not void the agreement. Id.
D. Certificate of Appealability
We will not issue a certificate of appealability for Brown's § 2255 motion. Pursuant to 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue if Brown "has made a substantial showing of the denial of a constitutional right." The timeliness of a habeas motion, however, is a procedural issue, not a constitutional right. McAleese v. Brennan, 483 F.3d 206, 211 n. 8 (3d Cir. 2007). Therefore, a certificate may not issue on an appeal from the denial of a habeas motion on timeliness grounds unless "[1] jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right and . . . [2] jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)). We find that neither element is satisfied and thus deny a certificate of appealability.
Brown is advised, however, that he has the right for thirty (30) days to appeal our order denying his petition, see 28 U.S.C. § 2253(a); Fed.R.App.P. 4(a)(1)(A), and that our denial of a certificate of appealability does not prevent him from doing so, as long as he also seeks a certificate of appealability from the court of appeals. See Fed.R.App.P. 22; Local Rule of Appellate Procedure 22.1.
IV. Conclusion
We need not consider the merit of the claims in Brown's motion because his § 2255 motion was not filed within the one-year limitation. Further, we will not schedule an evidentiary hearing because the motion and files of the case conclusively show that Brown has not filed his § 2255 motion within the one-year limitation. See United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
ORDER
AND NOW, this 20th day of August, 2007, upon consideration of Defendant Marcel Brown's motion pursuant to 28 U.S.C. § 2255 (doc. 579), filed March 20, 2007, and based on the accompanying Memorandum, it is ordered that:
1. Defendant's motion is denied;
2. A certificate of appealability is denied;
3. The Clerk of Court shall close this file.