Opinion
CIVIL ACTION NO. 5:16-01727 Criminal No. 5:08-00264 Criminal No. 5:09-00192
10-09-2018
JOSEPH R. BAIR, JR., Movant, v. UNITED STATES OF AMERICA, Respondent.
PROPOSED FINDINGS AND RECOMMENDATION
Movant, acting pro se, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody on February 19, 2016. (Document No. 136.) By Standing Order, this matter was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 137.)
Because Movant is acting pro se, the documents which he has filed in this case are held to a less stringent standard than if they were prepared by a lawyer, and therefore they are construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
FACTUAL AND PROCEDURAL BACKGROUND
A. Criminal Action Nos. 5:08-00264 and 5:09-cr-00192:
On June 8, 2009, Movant pled guilty to an Indictment in Criminal Action No. 5:08-00264 to one count of distribution of a quantity of hydrocodone in violation of 21 U.S.C. § 841(a)(1) (Count One). (Criminal Action No. 5:08-00264, Document Nos. 37 - 39.) On September 14, 2009, Movant pled guilty to a Single-Count Information in Criminal Action No. 5:09-00192 to one count of corruptly obstructing and impeding due administration of internal revenue laws in violation of 26 U.S.C. § 7212(a). (Criminal Action No. 5:09-00192, Document Nos. 7 - 11.) Subsequently, Movant filed several motions to continue sentencing in the above cases. (Criminal Action Nos. 5:08-00264, Document Nos. 53, 56, 61, 62 and Criminal Action No. 5:09-00192, Document Nos. 15, 19, 24, 25.) On September 2, 2010 and September 4, 2010, both Movant and the United States filed Motions to Continue Sentencing. (Criminal Action Nos. 5:08-00264, Document Nos. 65 and 66 and Criminal Action No. 5:09-00192, Document Nos. 28 and 29.) In support of the Motions, the parties stated "acceptance of responsibility" would be an issue and would likely involve the same evidence to be presented in Movant's pending State criminal proceedings. (Id.) By Order entered on September 9, 2010, the District Court granted the motions to continue to the extent the motions requested a continuance of the current sentencing date and denied the motions to the extent the parties were requesting that sentencing be continued generally. (Criminal Action Nos. 5:08-00264, Document No. 68 and Criminal Action No. 5:09-00192, Document Nos. 31.) The District Court acknowledged that the parties were moving for a continuance on the grounds "that 'acceptance of responsibility' will be an issue at sentencing and will likely involve the same evidence to be presented in the State court proceeding, and the alleged acts pending in State court may have considerable impact on Defendant's federal sentence." (Id.) A Presentence Investigation Report was prepared by the Probation Office. (Criminal Action Nos. 5:08-00264, Document No. 85 and Criminal Action No. 5:09-00192, Document Nos. 47.) In Movant's "Supplemental Sentencing Memorandum" filed on December 6, 2010, however, Movant stated that he was withdrawing his objection as to the issuance of a reduction for acceptance of responsibility and was requesting a downward variance from a Guideline Sentence. (Criminal Action Nos. 5:08-00264, Document No. 70 and Criminal Action No. 5:09-00192, Document Nos. 33.) In support, Movant stated as follows:
The sentencing hearing in these cases has been continued four times to resolve the issues arising from the Defendant's indictment in the Circuit Court of Raleigh County, West Virginia, in Case Nos. 10-F-14, with crimes involving receiving stolen good in violation of West Virginia Code 61-3-18. The resolution of that State charge bears upon the federal sentencing issue of Acceptance of Responsibility. Although this Court has been generous in its forbearance, the Circuit Court of Raleigh County, West Virginia, has not yet set the State case for trial and, Counsel is informed, cannot offer a trial by jury until sometime in February 2011. This Court has given notice that it declines to further continue the federal sentencing hearing herein.(Id.)
Without a resolution to the State case, the Defendant is forced to confront State charges at the federal sentencing hearing and, if he has any viable chance to prevail, the Defendant would be forced, as a practical matter, to testify in opposition to the Government's evidence in the State case. Counsel has advised the Defendant not to testify about the State case until, an unless, the State grants him a trial. John F. Parkulo, the Defendant's State counsel, has expressed to this Counsel that he also advises the Defendant not to testify in the federal sentencing hearing about the State indictment. Mr. Parkulo will be in attendance at the federal sentencing hearing to renew his advice to the Defendant. A mini-trial in the federal sentencing hearing on a preponderance of the evidence standard is not in the Defendant's best interest. Counsel, therefore, withdraws his objection to the issue of Acceptance of Responsibility. Counsel will not argue for Acceptance of Responsibility so as to initiate such a mini-trial on the State indictment.
The Presentence Investigation Report was adopted by the District Court without change. (Criminal Action Nos. 5:08-00264, Document No. 85 and Criminal Action No. 5:09-00192, Document Nos. 47.) The two counts of conviction in Criminal Action Nos. 5:08-00264 and 5:09-00192 were grouped under U.S.S.G. 3D1.2(d) and District Court determined Movant had a Base Offense Level of 16, and a Total Offense Level of 18, the Court having applied a two-level increase pursuant to U.S.S.G. § 2T1.1(b)(1) based upon Movant's failure to report over $10,000 in earnings in each of the tax years 2003 through 2007. (Id.) Movant was sentenced on December 21, 2010. (Criminal Action Nos. 5:08-00264, Document Nos. 72 and 73 and Criminal Action No. 5:09-00192, Document Nos. 35 and 36.) The District Court ordered that Movant serve a 27-month term of imprisonment to be followed by a three-year term of supervised release. (Id.) The District Court also imposed a fine of $6,000 and a $200 special assessment. (Id.)
In the Presentence Report, which was adopted by the Court, the Probation Officer recommended the Movant not be awarded an reduction for acceptance of responsibility because he "attempted to minimize his criminal conduct and has not accepted full responsibility for his criminal conduct" and he had "been arrested and charged with committing a state offense, similar in nature to the offense of conviction, while on bond following his guilty pleas." (Criminal Action No. 5:08-cr-0264, Document No. 85, pp. 17 - 18 and Criminal Action No. 5:09-0192, Document No. 47, pp. 17 - 19.)
The District Court determined that Movant was subject to the advisory guideline range of 27 to 30 months. (Criminal Action No. 5:08-00264, Document No. 74 and Criminal Action No. 5:09-0192, Document No. 37.) The District Court sentenced Movant at the bottom of advisory Guideline Range. (Id.)
On January 7, 2011, Movant filed a Notice of Appeal. (Criminal Action Nos. 5:08-00264, Document No. 78 and Criminal Action No. 5:09-00192, Document Nos. 40.) Counsel filed an Anders Brief challenging whether the District Court adequately explained the sentence and whether trial counsel provided ineffective assistance. United States v. Bair, Docket No. 11-4028, Document No. 19. Movant was advised of his right to file a pro se supplemental brief. Id., Document No. 27. Movant filed several pro se supplemental briefs. Id., Document Nos. 32 and 35. In his Second Supplemental Pro Se Brief, Movant challenged the District Court's failure to grant him a reduction for acceptance of responsibility under the Sentencing Guidelines. Id., Document No. 35, pp. 8 - 13. Specifically, Movant appeared to argue that the District Court erred in failing to grant him a reduction for acceptance of responsibility due to his then pending State charges. Id. Movant attached Exhibits allegedly supporting his claim that he was innocent of the State charges. Id. Movant, therefore, appeared to argue that he was entitled to a sentencing reduction for acceptance of responsibility. Id. Movant stated that his Guideline Range with a reduction for acceptance of responsibility would have been 18 - 24 months imprisonment, instead of 27 - 33 months without the reduction. Id., p. 13. On September 12, 2011, the Fourth Circuit Court of Appeals affirmed Movant's convictions and sentences. United States v. Bair, 446 Fed.Appx. 549 (4th Cir. 2011). Movant did not file a petition for writ of certiorari with the United States Supreme Court.
B. Section 2255 Motion:
On February 19, 2016, Movant filed his instant letter-form Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Civil Action No. 5:16-01727, Document No. 136.) As grounds for habeas relief, Movant states "this is proof that I received 9 extra months of federal time due to a state charge that I was found innocent of in a trial by jury of 12." (Id., Document No. 136, p. 1.) Movant complains that he "should have never been found [or] judged guilty by the federal judge and received 9 extra months for something I was innocent of." (Id.) Movant explains that he received a total offense level of 18 under the Guidelines because the Court failed to award him a 3-level reduction for acceptance of responsibility. (Document No. 136-2, pp. 33 - 34.) Movant states that he was not awarded an acceptance of responsibility reduction due to the then pending State charges. (Id.) Movant states that with an acceptance of responsibility reduction, his total offense level would have been 15 and his Guideline Range would have been 18 - 24 months (the Guideline Range determined by the Court was 27 - 33 months). (Id.) Movant further states that his trial counsel was "very sick" and "soon passed after this case." (Document No. 136, p. 2.) Therefore, Movant requests that his convictions be vacated. (Id.) Movant attaches multiple exhibits in support of his letter-form Section 2255 Motion. (Document No. 136, pp. 4 - 56, Document No. 136-1, and Document No. 136-2.)
Movant's attached Exhibits including the following: (1) An unsigned "Order Accepting Defendant's Plea and Sentencing Defendant" in Case Nos. 10-F-14 and 10-IM-34 (Civil Action No. 5:16-01727, Document No. 136-2, pp. 36 - 38); (2) An unsigned "Order accepting Defendant's Plea" in Case No. 10-IM-34 (Id., p. 39.); and (3) An unsigned "Order Sentencing the Defendant to the Southern Regional Jail" in Case No. 10-IM-34 (Id., p. 40.). The attached exhibits indicate that Movant pled guilty in Raleigh County Circuit Court on April 19, 2010, to one count of Obstructing an Officer in violation of West Virginia Code 61-5-17(a) in Case Nos. 10-F-14H and 10-IM-34H. (Id., Document No. 136-2, pp. 35 - 40.) As part of the plea agreement, the State dismissed the two counts of receiving stolen goods or other things of value as charged in Case No. 10-F-14H. (Id.) Movant, however, appears to argue that he went to trial on the charges contained in Case No. 10-F-14 and was acquitted.
Many of the Exhibits attached to Movant's letter-form Section 2255 Motion are the same Exhibits as filed with the Fourth Circuit Court of Appeals when Movant filed his Pro Se Supplements Briefs in support of his direct appeal.
ANALYSIS
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA], which established a one-year period of limitation governing the filing of motions for collateral relief under 28 U.S.C. § 2255. The one-year period runs from the latest of one of four specified events:
(1) the date on which the judgment of conviction becomes final;28 U.S.C. § 2255(f). The Fourth Circuit affirmed Movant's convictions and sentences on September 12, 2011, and his sentence became final 90 days later when he did not file a petition for writ of certiorari (December 12, 2011). On February 19, 2016, more three years and two months after the one-year period expired, Movant filed the instant Motion raising issues challenging his conviction and sentence in Criminal Action Nos. 5:08-00264 and 5:09-00192. (Civil Action No. 5:16-01727, Document No. 136.) Movant's Motion is clearly untimely under Section 2255(f)(1). Further, there is no allegation or indication by Movant that his Section 2255 Motion is timely because one of Section 2255(f)'s other subsections applies. Specifically, Movant does not allege an impediment preventing the timely filing of his Motion, a newly recognized right by the Supreme Court, or newly discovered evidence. Therefore, the undersigned finds that Movant's Section 2255 Motion is untimely.
(2) the date on which the impediment to making the motion created by government action in violation of the Constitution or laws of the United States is removed, if movant was prevented from making a motion by such government 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 reasonable diligence.
To the extent Movant contends that his alleged acquittal of State charges in March 2014 may constitute new fact not previously known, such still does not make Movant's Motion timely under Section 2255(f)(4). Movant filed his letter form Section 2255 Motion on February 19, 2016, well in excess of one year after the date of his alleged acquittal (March 2014).
The one-year period of limitation is procedural, not jurisdictional, and therefore may be equitably tolled. United States v. Prescott, 221 F.3d 686, 688 (4th Cir. 2000)("§ 2255's limitation period is subject to equitable modifications such as tolling."). The Fourth Circuit, however, has held that equitable tolling "must be reserved for those rare instances where - due to circumstances external to the party's own conduct - it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003); see also Harris v. Hutchinson, 209 F.3d 325, 329 - 30 (4th Cir. 2000)(equitable tolling should apply only where the petitioner is prevented from asserting his claim by wrongful conduct of the respondent or where extraordinary circumstances beyond the petitioner's control make it impossible to file the claim on time). Specially, the Fourth Circuit stated as follows in Harris, supra, at 330:
'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.' Fisher v. Johnson,
174 F.3d 710, 713 (5th Cir. 1999). The doctrine has been applied in 'two generally distinct situations. In the first, the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant. In the second, extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time.' Alvarez-Machain v. United States, 107 F.3d 696, 700 (9th Cir. 1996) (citation omitted). But any invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes. To apply equity generously would loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation. We believe, therefore, that any resort to equity must be reserved for those rare instances where - due to circumstances external to the party's own conduct - it would be unconscionable to enforce the limitation period against the party and gross injustice would result.Ignorance of the law is not a valid basis for equitable tolling. Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)(stating that ignorance of the law, including the existence of AEDPA, is insufficient to warrant equitable tolling); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)(equitable tolling not justified by the fact that the prisoner did not know about AEDPA time limitation). Thus, federal courts invoke the doctrine of equitable tolling "only sparingly" and will not toll a statute of limitations because of "what is at best a garden variety claim of excusable neglect" on the part of the defendant." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990). To receive the benefit of equitable tolling, a Section 2255 movant must demonstrate that circumstances beyond his control or government misconduct contributed to his inability to file his Section 2255 motion on time. Movant, however, fails to indicate any factor beyond his control that prevented him from presenting his claim in a timely manner. Based upon a thorough review of the record, the undersigned finds no circumstances justifying equitable tolling in this matter. As stated above, ignorance of the law is not a valid basis for equitable tolling. Therefore, Movant is hereby notified in accordance with the Fourth Circuit's decision in Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002), that the undersigned recommends that his Section 2255 action be dismissed as untimely unless Movant can demonstrate that the Motion was filed within the proper time period or circumstances exist which would permit equitable tolling of the limitation period.
Briefly considering Movant's claim, the undersigned finds it to be without merit. Movant appears to argue that he was acquitted of State charges in March 2014, and thus, he should have received a reduction for acceptance of responsibility. First, the undersigned notes that Movant, by counsel, withdrew his request for acceptance of responsibility. (Criminal Action No. 5:08-cr-0264, Document No. 70 and Criminal Action No. 5:09-0192, Document No 33.) Second, the District Court was well aware that Movant had not been convicted of the pending States charges at the time of his federal sentencing. Third, Movant's pending States charges were only one of the reasons Movant was not granted a reduction for acceptance of responsibility. (Criminal Action No. 5:08-cr-0264, Document No. 85, p. 17 and Criminal Action No. 5:09-0192, Document No. 47, p. 17.) Fourth, Movant challenged the District Court's failure to grant him a reduction for acceptance of responsibility in his pro se brief filed in support of his direct appeal. Bair, Docket No. 11-4028, Document No. 35. The Fourth Court found no merit in Movant's argument and affirmed Movant's sentence. See Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.)(per curiam), cert. denied, 429 U.S. 863, 97 S.Ct. 169, 50 L.Ed.2d 142 (1976)(a movant may not reassert a claim decided on direct review.) --------
PROPOSAL AND RECOMMENDATION
Accordingly, the undersigned respectfully proposes that the Court confirm and accept the foregoing findings and RECOMMENDS that the District Court DENY Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Document No. 136), and REMOVE this matter from the Court's docket unless Movant can demonstrate within the period of time allotted for objecting to this Proposed Findings and Recommendation that the Motion was filed within the proper time period or circumstances exist which would permit equitable tolling of the limitation period.
Movant is notified that this Proposed Findings and Recommendation is hereby FILED, and a copy will be submitted to the Honorable United States District Judge Irene C. Berger. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), Rule 8(b) of the Rules Governing Proceedings in the United States District Courts Under Section 2255 of Title 28, United States Code, and Rule 45(c) of the Federal Rules of Criminal Procedure, the parties shall have fourteen days (filing of objections) and three days (if received by mail) from the date of filing of these Findings and Recommendation within which to file with the Clerk of this Court, written objections, identifying the portions of the Findings and Recommendation to which objection is made, and the basis of such objection. Extension of this time period may be granted for good cause shown.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208, 104 S. Ct. 2395, 81 L. Ed. 2d 352 (1984). Copies of such objections shall be served on opposing parties, District Judge Berger, and this Magistrate Judge.
The Clerk is requested to send a copy of this Proposed Findings and Recommendation to Movant, and counsel of record.
Date: October 9, 2018.
/s/_________
Omar J. Aboulhosn
United States Magistrate Judge