Opinion
Criminal Action No. 91-189, Section "A"
May 4, 2000
ORDER AND REASONS
Before the Court is the Government's Motion to Dismiss petitioner's Section 2255 petition as time-barred. Counsel for the petitioner filed a formal reply arguing that the exceptional circumstances of this case dictate that the rule of equitable tolling be applied and that the Court consider the merits of petitioner's case. The matter is deemed submitted for decision on the briefs and documents of record.
See, Government's Motion and Incorporated Memorandum to Dismiss Petitioner's Motion for vacation of Conviction or Modification of Sentence Pursuant to Title 28 United States Code, Section 2255 [Rec. Doc. No. 217].
See, Reply to Government's Response in Opposition [Rec. Doc. No. 221].
The instant motion is time-barred by the statute of limitations set forth in 28 U.S.C. § 2255. Congress enacted a strict statute of limitations for habeas corpus proceedings as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Section 2255 of Title 28 of the United States Code now provides, with respect to the timeliness of the petition:
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 had 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.
The court's record in this matter clearly demonstrates that the conviction of the petitioner, Jamal Abu Samak ("Samak"), was final in 1993. Pursuant to the AEDPA, effective April 24, 1996, Samak had one year from the effective date of the act (i.e., until April 24, 1997) to file for Section 2255 relief. Petitioner filed the instant petition on December 22, 1999.
Samak went to trial on a two-count second superseding indictment for conspiracy to violate the Organized Crime Control Act, 18 U.S.C. § 2, 34, 371. The substantive violation charged petitioner with malicious destruction by fire, causing the death of another. On December 11, 1991, he was convicted pursuant to jury trial on both counts. On March 20, 1992, he was sentenced to life imprisonment, the sentence called for under the guidelines which contemplated a total offense level 45 and a criminal history category III.
Petitioner's codefendants pled guilty: (1) Daniel Lee pled guilty on July 22, 1991; and (2) both Tark and Abdel T. Mousa, the grocery store owners, pled guilty on December 6, 1991 to superseding bills of information.
Statutory exceptions to the one-year limitation period were not invoked. Petitioner simply submits that rare and exceptional circumstances permit tolling of the limitations period in his case. Samak argues that his diligent efforts seeking an attorney to prosecute his 2255 claims constitute sufficient equitable reason to find the one-year time limitation tolled (i.e., the time from April 24, 1997 until December of 1999). The Court is not persuaded.
The exceptions to the limitations period prescribed by Section 2255 are: (1) "the date on which the judgment of conviction becomes final" on direct appeal; (2) "the date on which the impediment to making a motion created by the government 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 and made retroactively applicable to cases on collateral review"; and (4)"the date on which the facts supporting the claims or claims presented could have been discovered through the exercise of due diligence." Samak alleges none of the foregoing exceptions.
As of April 1998, petitioner's former counsel Mr. Ferrouillet had returned, and thus petitioner was in possession of, all of his funds and any court documents necessary to prosecute his own Section 2255 claim. As of that moment in time, Samak could have filed a Section 2255 petition either with or without the assistance of counsel. Even assuming the one-year limitation period was tolled up until April of 1998, the instant habeas petition was filed approximately eight (8) months after the April of 1999 and approximately twenty (20) months after petitioner was in a position to file the instant complaint.
The Court here notes that as early as December 17, 1993, Samak filed with this Court a pro se Rule 33 Motion for New Trial, alleging inter alia, ineffective assistance for not challenging imposition of the life sentence without a jury recommendation. Also, on February 14, 1994, Samak filed apro se written response to the Government's opposition to his Motion for New Trial. [Rec. Doc. No. 194].
In written reasons denying the Motion for New Trial, this Court noted that life sentence was prescribed by the applicable guidelines and its imposition was pursuant to the sentencing guidelines. Considering all of the particular circumstances of the defendant's case which were set forth in the probation officer's presentence investigation report (PSI), including petitioner's criminal history, there were no circumstances present which warranted a departure from the guideline sentence, which was life imprisonment. The evidence adduced at trial regarding the subject offense behavior was gruesome, at best. The torched building which housed the Community Grocery Store also had several apartments. It was a virtual certainty that inhabitants of the apartments or adjacent buildings would be severely injured if not killed by an act of arson of this type.
In this vein, Daniel Lee, Samak's co-defendant, testified at trial that it was apparent to both of them the night the fire was set that people were living in the houses next door to the Community Grocery. See, Trial Transcript Volume II, at p. 260. The evidence adduced at trial was further to the effect that at approximately 10:30 P.M. on March 12, 1991, Lee accompanied Samak to the gas station in Samak's car to fill-up four five-gallon grey plastic containers of gasoline on their way to Mousa's store on S. Saratoga. Lee testified that they were unable to do the job at that particular time because there were people hanging around on the street outside of the store. They left the area twice and finally, when they returned at 3:30 A.M., all was clear. Id., at pp. 261-62. Lee testified that they entered through the unlocked side door of the apartment building each carrying two five-gallon containers of gasoline, Samak had keys and locked the door from the inside after they entered. After emptying two containers in the upstairs apartment, Samak unlocked the store and they proceeded to empty the other two five-gallon containers. According to Lee, a light was on in the store when they entered it. They put the empty container in the trunk of Samak's car. Then, Samak sent Lee back to turn the light off after bringing the empty containers to the car. Id., at pp. 262-64. Lee testified, he realized something was wrong just as he stepped inside the burglar doors of the store and turned to go back to the car, whereupon Samak, who had followed him, slammed the burglar door on his right foot and he fell back in between the front door and burglar doors. Lee testified that Samak then threw a lit match through the burglar doors, the building went up in flames, and the pressure of the gas explosion threw him outside of the store. Id. at pp. 264-66. The sum and substance of Lee's testimony was that he realized just before reentering the store door that it was Samak's plan to kill him in the blaze because dead men tell no tales. Id., at 265.
Two of the surviving occupants of the apartment building, James Quincy Whitehead and Melanie Williams, testified regarding the magnitude of the explosion. They further testified that after being blown down the stairs, they managed to escape through a small hole in the wall of the apartment building. Melanie testified, another occupant named Jimmy was following them out of the apartment building. She recounted that he was a rather large man and could not fit through the small hole. Melanie testified that she stayed trying to move a board to make the opening wider for him to escape but had to leave when her arm started burning. See, Trial Transcript Vol. II, at pp. 346-53.
The record is clear, the Court was aware of the Fifth Circuit pre-Guidelines precedent in United States v. Williams, 775 F.2d 1295, 1299 (5th Cir. 1985), cert. denied, 106 S.Ct. 1477 (1986), which held that section 34 requires a jury recommendation for the imposition of a life sentence. The Court concluded on the record at the time of sentencing its opinion that Williams was not controlling law because Samak's sentence was pursuant to the Sentencing Guidelines, which the Williams court did not address. Finding no reason to depart below the applicable guidelines based upon the facts, some of which are recounted above, the Court imposed the Guideline sentence — life imprisonment.
The one-year limitations period of the AEDPA is a statute of limitations that is not jurisdictional and is subject to equitable tolling. Molo v. Johnson, 2000 WL 320519 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999),reh'g denied and suggestion reh'g en banc denied, 189 F.3d 471 (5th Cir. 1999) and 204 F.3d 168 (5th Cir. 2000); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999). In Davis, the Fifth Circuit observed: "The Supreme Court held that limitations periods with even more limiting language than the AEDPA provision could be equitably tolled. . . ." The court in Davis stated that the AEDPA's statutory language and construction clearly evinces a congressional intent to impose a one-year statute of limitations for the filing of federal habeas claims. The Davis court concluded that in rare and exceptional circumstances, it can be equitably tolled. Id.
The Fifth Circuit in Fisher rejected petitioner's claim that he was entitled to equitable tolling for the period between the AEDPA's effective date and the date he received actual notice of the AEDPA. The Fisher court explained that ignorance of the law or lack of knowledge of filing deadlines does not justify equitable tolling citing Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992) for the proposition that neither a prisoner's pro se status nor ignorance of the law constitutes "cause." TheFisher court noted that even after learning of the AEDPA's limitation period, Fisher had 322 days to complete his Section 2254 petition, which was more than enough time. The court concluded that equity was not intended for those who sleep on their rights. 174 F.3d at 715.
While the AEDPA's one-year limitations period is subject to equitable tolling in appropriate circumstances, the burden is on the petitioner — here, Samak — to make the requisite showing of rare, exceptional and/or extraordinary circumstances beyond his control which made it impossible for him to timely file his Section 2255 petition. All of the reasons Samak offers taken as true and considered together do not justify tolling. Petitioner has not presented any evidence sufficient to demonstrate rare or extraordinary circumstances contemplated by applicable case law.
Since Davis, supra, the Fifth Circuit has provided additional insight into the types of circumstances which may be considered "rare and exceptional." In Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000), the Fifth Circuit stated that "`[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Id. at 402 (citing Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). Also, more recently in Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000) the Fifth Circuit reiterated:
Davis, 158 F.3d at 811.
[P]roceeding pro se is not a `rare and exceptional' circumstance because it is typical of those bringing a [habeas] claim. Cf. United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993) (holding pro se status, illiteracy, deafness, and lack of legal training are not external factors excusing abuse of the writ); Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (holding equitable tolling limitations within the Age Discrimination in Employment Act were not warranted by plaintiff's unfamiliarity with legal process, his lack of representation, or his ignorance of his legal rights).Id. at 171. The Felder court further noted a claim of actual innocence also does not constitute "rare and exceptional" circumstances given that many prisoner's maintain they are innocent. Also, here, as in Felder, petitioner has made no showing of actual innocence and the record in this case admits no such conclusion.
Petitioner in the case at bar submits via affidavit that he learned in December of 1997 that his habeas petition had not been filed by his former attorney, Mr. Ferrouillet, who he allegedly hired to file his application. In April of 1998, petitioner commenced efforts to obtain counsel to file a habeas petition on his behalf. After several unsuccessful efforts to contact counsel, he attests that finally in December of 1998 he received a letter from present counsel agreeing to represent him in this case. In summary, Samak claims his delay in filing was not due to any lack of diligence on his part. The Court is not persuaded that the foregoing including the difficulty encountered in finding honest and trustworthy counsel to represent him in prosecuting his Section 2255 claims constitute external "rare and exceptional" circumstances which requires equitable tolling. It was not until December of 1999 that the Court received petitioner's application for relief.
As previously stated the Court believes that taken as true and correct and giving petitioner the benefit of every doubt, his allegations fail to meet the high standard necessary to justify equitable tolling of the AEDPA's one-year limitations period. Petitioner simply has not shown that he was unable or any problem rendered him physically or mentally incapable of prosecuting his Section 2255 claims during the relevant time period.
The Fifth Circuit has held that "neither a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 1999 WL 342487 at 2 (5th Cir. 1999). Also, "ignorance of the law, even for an incarceratedpro se petitioner, generally does not excuse prompt filing."Fisher, 174 F.3d at 714.
In Molo v. Johnson, 2000 WL 320519 (5th Cir. 2000), the Fifth Circuit. addressed petitioner's argument to the effect that ineffective assistance of counsel constituted exceptional circumstances. The Fifth Circuit opined that assuming petitioner's contentions regarding ineffective assistance were correct, his ineffective assistance of counsel claim did not toll the AEDPA's statute of limitations. The Molo court explained that the facts underlying petitioner's § 2255 claims did not prevent him from filing a federal habeas petition until long after the one-year limitations period expired.
Molo contended that the evidence was insufficient to convict him and but for the ineffective assistance of appellate counsel his conviction would have been reversed on appeal.
Here as in Molo, even assuming that Samak's allegations are correct as to "retained" former counsel's failure to file his Section 2255 claims and return his file, Samak was aware of the failure to file early on and could have filed his own Section 2255 claim long before December of 1999 but apparently chose not to file without the assistance of "retained" counsel. The Government aptly points out that as of December 21, 1997, the date of Samak's Complaint to the Louisiana Bar Association Office of Disciplinary Counsel, it is clear that Samak was well aware of his former counsel's failure to file his Section 2255 petition.See, Government's Motion to Dismiss, Tab 2, Samak's December 21, 1997 Complaint filed with the Louisiana State Bar Association's Office of Disciplinary Counsel on January 5, 1998. That was a full two years prior to the time when the instant petition was in fact filed. Also, as the Government notes, despite the fact petitioner had been apprised early on of the problem that the AEDPA's time bar would pose and he still did not proceed with haste.
By April of 1998, petitioner had all funds returned to him by his prior counsel and the documents necessary to confect a Section 2255 application either with or without the assistance of counsel. Thereafter 20 months elapsed, and Samak's § 2255 complaint was not filed until December of 1999.
This record does not permit a finding of diligent efforts to proceed with petitioner's Section 2255 claims. Nothing external to petitioner prevented him in some extraordinary way from asserting his rights. Also, the record belies Samak's claims of lack of fluency and lack of legal sophistication. The fact that petitioner spent years attempting to obtain "out of state" professional legal assistance instead of confecting his Section 2255 claims does not, in this Court's view, constitute the extraordinary circumstances required to toll the AEDPA's one-year limitation period.
In addition to petitioner's Motion for New Trial, on April 5, 1996, petitioner also filed a pro se Motion for Return of Tangible Property pursuant to Rule 41(e) which is cogent and to the point. [Rec. Doc. No. 206].
In conclusion, neither the facts argued in reply to the Government's motion to dismiss, nor the facts underlying his Section 2255 claims prevented Samak from filing a federal habeas petition until January 18, 2000 — well after the AEDPA's one-year limitations period expired.
The Court recognizes, as did the Government in its Motion to Dismiss, that petitioner has albeit extremely belatedly, set forth a contention that arguably has some merit (i.e., his claim involving the imposition of a life sentence in the absence of a jury recommendation as required by the version of Section 34 which was in effect at the time of petitioner's sentencing on Count Two. Post-guidelines case law relying on the Fifth Circuit's pre-Guidelines decision in Williams have found its holding with respect to Section 34 controlling in the post-guidelines cases. More recently, the Fourth Circuit inUnited States v. Gullett, 75 F.3d 941, 949 (4th Cir. 1996), cert.denied, 117 S.Ct. 134 (1996), held that without a jury recommendation the pre-1994 version of Section 34 functions "`to deny Ethel sentencer power to impose a life sentence in a particular instance'" despite the fact that a sentence of life imprisonment may be called for by application of the Sentencing Guidelines. The Fourth Circuit concluded that "the Guidelines could not trump the edicts of federal criminal statutes." Id.
Petitioner submits that he suffered from multiple Sixth Amendment violations including ineffective assistance at the trial phase, sentencing phase and appellate phase of these proceedings including trial and appellate counsel's failure to challenge as plain error the district court's imposition of a life sentence absent a jury recommendation to do so.
At the time of Samak's offense, the applicable statutory penalty enhancement provision stated that a person convicted under Section 844(i) was subject to imprisonment:
for not more than ten years . . . and if death results to any person, . . . as a direct or proximate result or conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or life imprisonment as provided in section 34 of this title.
The version of section 34 in effect at the time Samak was sentenced stated:
Whoever is convicted of any crime prohibited by this chapter, which has resulted in the death of any person, shall be subject also to the death penalty or to life imprisonment, if the jury shall in its discretion so direct, or, in the case of a plea of guilty, or a plea of not guilty where the defendant has waived trial by jury, if the court in its discretion shall so order.
Section 34 was amended in 1994 to omit any reference to the recommendation of a jury.
The Fifth Circuit's pre-Guideline's decision in United States v. Williams, 775 F.2d 1295, 1299 (5th Cir. 1985) held that the combination of sections 844(i) and 34 meant that the defendant could be sentenced by the district court only to "any term of years" and not to life imprisonment absent a jury recommendation. The Williams decision did not address or discuss the effect of the Sentencing Guidelines on Section 34.
The Seventh Circuit in United States v. Prevatte, 16 F.3d 767, 784 (7th Cir. 1994). appeal after remand, 66 F.3d 840 (7th Cir. 1995), similarly a post-Guidelines case, discussed the relationship of section 34 and the Sentencing Guidelines. It noted that 28 U.S.C. § 994 sets forth the duties of the Sentencing Commission, and mandates, among other things, that the Commission promulgate sentencing guidelines consistent with all pertinent provisions of titles 18 and 28 of the United States Code. 16 F.3d at 784. The Prevatte court concluded that section 34 imposes a limitation on the sentence a district court may impose under the Guidelines. Consequently, the Prevatte court held that the district court erred in sentencing the defendants to life without a jury recommendation. In the court's view, a life sentence without a jury recommendation constituted a sentence which exceeded the statutory maximum which was "any term of years" absent a jury recommendation of life imprisonment.
There are no bright line rules with respect to equitable tolling and this Court recognizes that dismissal is particularly serious in this case. Counsel for petitioner has reminded the Court that dismissal would deny the instant petitioner the protections of the Great Writ entirely — that is, not counting petitioner's post-appeal "Motion for New Trial." Notwithstanding the arguable merit of petitioner's habeas claim with respect to the imposition of a life sentence absent a jury recommendation, and being cautious not to apply the statute of limitations too harshly, the Court believes that the particular facts and circumstances presented do not justify equitable tolling of the AEDPA's one-year limitations period. This Court must also be mindful of the Fifth Circuit's cautionary statements in Felder, supra.
The Fisher court explained that as a discretionary doctrine that turns on the facts and circumstances of a particular case, equitable tolling does not lend itself to bright-line rules and noted:
We must be cautious not to apply the statute of limitations too harshly. `Dismissal of a first habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty.' 174 F.3d at 713 (citing Lonchar v. Thomas, 116 S.Ct. 1293 (1996)).
In Felder, 204 F.3d at 173, the court mindful of the Supreme Court cautionary statements in Lonchar v. Thomas , dismissed petitioner's first federal habeas claim, and explained:
116 S.Ct. 1293 (1996).
It is the case, however, that Felder's circumstances are clearly not among those `rare and exceptional' conditions that warrant deviation from both the express rules Congress has provided and the grace-period we have already granted prisoner's whose convictions were final before the AEDPA's effective date. To hold otherwise would characterize as `rare and exceptional', circumstances that countless other prisoners could claim as their own. Cf. Fisher, 174 F.3d at 715 ("[T]he same concept would apply equally to many other prisoners and in different variations of delayed information, becoming a judicial tolling rule. Such broad decisions are for Congress, not equity.").
Petitioner's general and conclusory claims of incapacity to protect his own legal rights find no support in the record. The record demonstrates that petitioner performed adequately representing himself before the Louisiana State Bar's Office of Disciplinary Counsel against his alleged former counsel, Mr. Ferrouillet, who was allegedly retained to file his habeas petition. The record is devoid of any documented periods hospitalization which would have prevented petitioner from pursuing his claims. None of petitioner's attestations even taken together appear to this writer to support a conclusion that his mental and/or physical health was so impaired or that any of the conditions of his confinement were so restrictive that they prevented him from preparing his own habeas petition. Also, it is this Court's opinion that the record does not support the conclusion that any person other than the defendant prevented the timely filing of petitioner's habeas claims.
Accordingly and for all of the above and foregoing reasons,
IT IS ORDERED that petitioner, Jamal Abu Samak's application for Section 2255 relief is DISMISSED as TIME-BARRED.