Opinion
CV-21-08222-PCT-DLR (MTM)
10-14-2022
Jason Christian Berger, Movant, v. United States of America, Respondent.
THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey United States Magistrate Judge
Movant Jason Christian Berger has moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Doc. 13.
Citations to “Doc.” are to the docket in CV-21-08222-PCT-DLR (MTM). Citations to “CR Doc.” are to the docket in the underlying criminal case, CR-13-8075-PCT-PGR.
I. SUMMARY OF CONCLUSION
On June 24, 2014, Movant was sentenced to a term of imprisonment for illegal possession of a machinegun. CR Doc. 46. Movant did not file a direct appeal. The deadline to file his § 2255 motion was July 9, 2015. Movant's § 2255 motion is untimely by over six years. Because there are no grounds for equitable tolling, this Court recommends the § 2255 motion be denied and dismissed with prejudice.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 28, 2013, a grand jury indicted Movant, charging him with possession of a machinegun, possession of an unregistered firearm, and possession of firearms while having a prior felony. CR Doc 4. On January 28, 2014, Movant pled guilty to one count of illegal possession of a machinegun. Doc. 16-1, 16-2 at 7. In his factual basis, Movant admitted:
On or between July 15, 2012, and August 22, 2012 in the District of Arizona, I knowingly possessed a Browning M1919 Rifle, caliber 7.64x51. This firearm is fully automatic or what is commonly referred to as a machinegun. I knew that this firearm was fully automatic and a machinegun. I knew that it was illegal for me to possess this firearm.Doc. 16-1 at 7-8. On June 24, 2014, the Court sentenced Movant to a 65-month term of imprisonment, followed by three years of supervised release. Doc. 16-3 at 22-23; CR Doc. 46. Movant did not file a direct appeal.
III. ANALYSIS
On October 12, 2021, Movant filed a motion to vacate, set aside or correct a sentence under 28 U.S.C. § 2255. Doc. 1. This Court denied the motion with leave to amend [doc. 3]; Movant then filed an amended motion followed by several motions to amend or extend the time to file amendments. Doc. 4, 7-10. On January 06, 2022, Movant filed a second amended motion. Doc. 13. In his second amended motion, Movant raised fifteen grounds for relief, as summarized in this Court's order:
Ground One: actual innocence because of government agents planting evidence
Ground Two: violation of Sixth Amendment right to counsel because his counsel abandoned him
Ground Three: actual innocence due to “extraordinary circumstances” and “miscarriage of justice” resulting from misconduct by law enforcement
Ground Four: actual innocence/miscarriage of justice because counsel failed to investigate and forced him to plead guilty
Ground Five: Sixth Amendment violation due to failure to investigate
Ground Six: involuntary guilty plea
Ground Seven: actual innocence because of various First Amendment, Fifth Amendment, and Sixth Amendment violations
Ground Eight: violation of his Sixth Amendment rights because of unethical behavior by counsel
Ground Nine: involuntary guilty plea due to mental incompetency
Ground Ten: conviction and sentence premised on unlawfully obtained prior conviction
Ground Eleven: violation of Sixth Amendment rights because his plea was involuntary
Ground Twelve: ineffective assistance of counsel because counsel did not present an adequate defense
Ground Thirteen: sentence was illegally enhanced with a conviction that violated his Fourth Amendment rights
Ground Fourteen: ineffective assistance of counsel
Ground Fifteen: actual innocence because of police misconduct.Doc. 14 at 1-2.
A. The motion is untimely
A § 2255 petition must be filed within one year from the date on which the judgment of conviction became final. 28 U.S.C. § 2255(f)(1). Where, as here, a movant does not file a direct appeal, “the conviction becomes final when the time for filing a direct appeal expires,” United States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015), which is fourteen days after entry of final judgment, Fed. R. App. P. 4(b)(1)(A). Section 2255(f)'s one-year limitation period begins running upon expiration of the time for filing a direct appeal. Gilbert, 807 F.3d at 1200.
The district court entered judgment on June 25, 2014. CR doc. 46. Movant did not file a direct appeal. His conviction became final on July 9, 2014-when the fourteen-day deadline for filing a direct appeal lapsed. See Gilbert, 807 F.3d at 1199. Accordingly, a timely § 2255 motion was required to be filed by July 9, 2015. See 28 U.S.C. §2255(f)(1). Because Movant did not mail his § 2255 motion until October 7, 2021, it is untimely by more than six years.
B. Movant is not entitled to equitable tolling
The statute of limitations may be equitably tolled in a 28 U.S.C. § 2255 action if “(1) the [movant] has diligently pursued his rights, and (2) extraordinary circumstances exist.” United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “[E]xtraordinary circumstances beyond a prisoner's control [must] make it impossible to file a petition on time and the extraordinary circumstances [must be] the cause of the prisoner's untimeliness.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012). “Equitable tolling is not even a possibility until a petitioner submits proof that external forces, and not a Movant's lack of diligence, accounted for the failure to file a timely petition.” Smith v. Ratelle, 323 F.3d 813, 821 (9th Cir. 2003). The movant is required “to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003), as amended (Nov. 3, 2003) (citation omitted). Movant bears the burden of establishing equitable tolling's requirements. Pace, 544 U.S. at 418.
Movant has not alleged or proven that extraordinary circumstances prevented him from filing a timely § 2255 motion. In addressing the timeliness of his motion, Movant merely alleged that his trial counsel was ineffective in failing to investigate or interview witnesses in this case before Movant pled guilty. Doc. 13 at 20. Elsewhere in his petition, Movant claims his trial counsel neglected to inform him of his right to file a § 2255 motion. Doc. 13 at 5, 20. Neither assertion provides a basis for equitable tolling. First, Movant does not explain how his trial counsel's purported failure to interview witnesses caused him to file his § 2255 motion after the limitations period. See Spitsyn, 345 F.3d at 799 (stating requirement for causal relationship). Second, as to Movant's claim his trial counsel failed to inform him of his right to file a § 2255 motion, Movant is not entitled to advice from counsel related to the availability of federal habeas relief. Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002) (citing Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993) (“Clearly, there is no constitutional right to counsel on [federal] habeas.”)) (additional citations omitted). Therefore, the lack of such advice and even incorrect advice is not “sufficiently egregious” attorney conduct to constitute extraordinary circumstances. See Castro, 292 F.3d at 1068 (holding that appellate counsel's miscalculation of federal habeas due date did not toll the statute of limitations period); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (“the miscalculation of the limitations period by Frye's counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling.”); cf. Spitsyn, 345 F.3d at 800 (holding failure of counsel to prepare habeas petition within one-year limitations period or return case file despite being hired a full year in advance “sufficiently egregious” to toll limitations period). Moreover, Movant's lack of understanding of the right to file a § 2255 motion does not toll the statute of limitations period. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding a pro se petitioner's ignorance of the law “is not, by itself, an extraordinary circumstance warranting equitable tolling”); Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness.”).
In addition to failing to show extraordinary circumstances, Movant has not shown he diligently pursued his rights. As evidence he pursued his rights to challenge his conviction, Movant included as exhibits: (1) his trial counsel's letter dated September 15, 2014, responding to Movant's state bar complaint, (2) a letter from the Federal Public Defender dated February 20, 2018 responding to Movant's request for his case file and informing him to reach out to his trial counsel because the Federal Public Defender withdrew from his case after the initial appearance, (3) a letter from the state bar dated January 14, 2019, providing Movant with his trial counsel's contact information, and (4) a letter from the state bar dated December 13, 2021 informing Movant that a record of his bar complaint against his trial counsel was no longer available. Doc. 13-1.
Although Movant apparently filed a bar complaint against his trial counsel, he did not attempt to raise an ineffective assistance of counsel claim or otherwise challenge his conviction until he filed the present § 2255 motion, filed over seven years after his conviction. Indeed, Movant's exhibits show he waited until January 2018, over three years after his conviction and over two and a half years after a timely § 2255 motion was required to be filed, to request his criminal case file or his trial counsel's contact information. Doc. 13-1 at 7-8. See Pace, 544 U.S. at 419 (2005) (holding petitioner did not diligently pursue his rights where he waited years before deciding to seek relief in federal court); Waldron-Ramsey, 556 F.3d at 1014 (“If diligent, [petitioner] could have prepared a basic form habeas petition and filed it to satisfy the AEDPA deadline, or at least could have filed it less than 340 days late assuming that some lateness could have been excused.”). On this record, Movant is not entitled to equitable tolling of his untimely filed § 2255 motion.
C. Movant has not proven actual innocence
Movant argues he is actually innocent of the offense. Doc. 13 at 5, 20. “Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). “Actual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 615 (1998). Movant does not present new reliable facts to establish he is actually innocent. “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
Movant asserts that there were no firearms in the home the day of his arrest, and that federal agents planted the machinegun several days after his arrest. Doc. 13 at 5. Movant attached as exhibits to his motion printouts from news sites and blogs related to corruption in Navajo County, a search warrant issued by Navajo County in Movant's state criminal matter, as well as letters written by individuals discussing the search of Movant's home by deputies of the Navajo County Sheriff's Office. Doc. 13-1 at 10-21, doc. 13-2. None of these materials contain an assertion that Movant did not possess the firearm for which he was convicted. The exhibits are not exculpatory and thus cannot be new, reliable evidence supporting an actual innocence claim. See Schlup, 513 U.S. at 324. Notably, Movant also attached a letter dated September 8, 2021, addressed to this Court in which he explained that he “armed [himself] with a belt fed browning machine gun, a shot gun, 44 mag. Pistol, 9mm pistole, and a 7.62 x 39 Russian sks rifle” under the belief that “the police who premeditatedly murder people, were going to murder us.” Doc. 13-1 at 22-30. Movant has not presented evidence of actual innocence and thus no exception applies to excuse the untimely filing of his § 2255 motion.
On September 21, 2022, and October 6, 2022, Movant filed supplemental documents including a one-page letter from Movant stating he received ineffective assistance of counsel and citing a case he argues supports his claim, (doc. 22) and excerpts from a book with a request to include the information in his case file. Doc. 24. The Court has considered the filings and neither changes the Court's analysis.
IV. CONCLUSION
The Court concludes Movant's § 2255 motion is untimely and Movant is not entitled to equitable tolling. The record is sufficiently developed, and the Court finds an evidentiary hearing is unnecessary for resolving this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS RECOMMENDED that the motion to vacate, set aside, or correct sentence (doc. 13) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied. Movant has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.