Opinion
Civil Action No. 00-738, Criminal Action No. 96-0100, Section "LLM"
July 25, 2000
ORDER AND REASONS
This matter is before this Court on petitioner Pedro Wardell Brown's Motion for Leave to File Late § 2255 Motion, and his motion and amended motion for 28 U.S.C. § 2255 relief from his conviction and sentence. Because the Court finds no grounds upon which to grant petitioner leave to file his late § 2255 motion, there is no need to address the merits of his motion and amended motion.
Brown's first Judgment and Conviction was entered on January 15, 1997, and forwarded to USP Lompoc on March 20, 1997. Brown's attorney timely filed a notice of appeal with the U.S. Fifth Circuit Court of Appeals. On April 14, 1997, payment for trial transcripts for defendant was authorized by the Court. On December 30, 1997, the Fifth Circuit remanded the case to the district court for re-sentencing, ordering it to set forth its findings relating to the "two-point increase" in the offense level for obstruction of justice, which this Court applied in determining Brown's sentence. This Court conducted another sentencing hearing on March 11, 1998, and re-sentenced Brown in accordance with the Fifth Circuit's instructions, with the resulting sentence amounting to 72 months less than his original sentence. Brown had ten days to file an appeal of this sentence under F.R.A.P. 4, but did not do so. His sentence, therefore, was final on or about March 25, 1998. See U.S. v. Gamble, 208 F.3d 536, 537 (5th Cir. 2000). Presumably, he had one year from that date, or until March 25, 1999, to file his § 2255 motion. 28 U.S.C.S. § 2255. The instant motion, however, was not filed until February 18, 2000.
The court is giving Brown the benefit of the doubt, as the statute actually reads "one year on which the date the judgment of conviction becomes final." 28 U.S.C.S. § 2255. See, e.g., Kapral v. United States, 166 F.3d 565, 571 (3d Cir. 1999); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999), cert. denied, ___ U.S. ___, 120 S.d. 808, 145 L.Ed.2d 681 (2000) 1). "[P]etitioners attacking convictions or sentences which became final prior to the AEDPAs effective date will be accorded the one-year post-AEDPA period, commencing on the Act's effective date, within which to file for section 2255 relief." States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998). "[A] conviction becomes final when a defendant's options for further direct review are foreclosed, whether or not those options have been pursued." U.S. v. Thomas, 203 F.3d 350, 355 (5th dir. 2000); See, e.g., Kapral v. United States, 166 F.3d 565, 571 (3d Cir. 1999); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 808, 145 L.Ed.2d 681 (2000).
Brown contends that he was unable to timely file his motion due to conditions and circumstances beyond his control. He maintains that while he was incarcerated at USP Lompoc, he was placed in administrative segregation "pending investigation" from September, 1998 until March, 1999, when he was transferred to USP Leavenworth. He asserts that prior to being placed in administrative lockdown, he was in the process of preparing his § 2255 motion, but was prevented from doing so while in administrative lockdown. He further claims that after being transferred to USP Leavenworth and released to general population, he learned that prison authorities had lost his legal documents and materials. He says that he immediately filed a tort claim regarding the loss of his legal documents. According to Brown, he contacted his attorney in an attempt to have copies of his legal documents sent to him, but his attorney refused. He states he then contacted the Clerk of Court and made arrangements to have a copy of his re-sentencing transcript sent to him. (See Clerk's letter in response dated September 22, 1999, Ex. A). He further states he did not receive the re-sentencing transcript until January 21, 2000.
Brown is actually arguing he is entitled to relief under 28 U.S.G.S. § 2255(2), which says the one year period runs from "from the date on which the impediment to making a motion created by governmental action . . . is removed, if the movant is prevented from making a motion by such governmental action."
In a letter dated August 3, 1999 from the U.S. Department of Justice regarding Mr. Brown's administrative tort claim, the author stated that investigation revealed Brown was housed at USP Lompoc from March 25. 1998 (apparently after his re-sentencing on March 11, 1998) until March 17, 1999. His property was inventoried on March 17, 1999, and the inventory form reflects that Brown refused to sign the form. On that date he was transferred to USP Leavenworth. On April 7, 1999, Brown received and signed the inventory form, certifying the accuracy of the inventory. There was no record on the form that he made the staff aware of any discrepancy as to the accuracy of the inventory or damage to any property. Accordingly, Brown's administrative tort claim was denied. Brown does not deny to this Court the accuracy of any of the information in the letter from the Department of Justice. (Ex. B).
The substance of Brown's § 2255 motion is not based on the re-sentencing, so he can not claim that his failure to receive the re-sentencing transcript until January of 2000 is relevant. His motion is based on an ineffective assistance of counsel argument, claiming errors occurred during critical stages throughout the proceedings, including pretrial, trial and on direct appeal. Brown does not say when he received his trial transcript, but it is clear from the memoranda in support of this motion that he had the trial transcript when he prepared the motion, as he cites certain pages in the transcript to support his position. Further, he claims he was working on the motion before September of 1998, when he was allegedly put in administrative segregation, so he must have had it prior to that time. In addition, as noted above, on April 7, 1999, Brown received and signed the inventory form at USP Leavenworth, certifying the accuracy of the inventory. Again, as noted above, there was no record on the form that he made the staff aware of any discrepancy as to the accuracy of the inventory or damage to any property.
If Brown's legal documents and materials, including the trial transcript, were missing on March 17, 1999, when he refused to sign the inventory form at USP Lompoc, he still had time to file a § 2255 motion, explain his situation to the Court, and ask for an extension of time to file his supporting memorandum, as he had until at least March 25, 1999 to file the motion within the one year deadline. Further, he could have informed the Court of his situation in April of 1999, after he apparently received all of his property, including all of his legal documents and materials, and requested an extension of time to file his § 2255 motion, which he claims he was working on prior to September of 1998, when he was placed in administrative segregation at USP Lompoc and allegedly denied access to these materials. At that point, he would have had a much more persuasive argument that he was entitled to equitable tolling of the one year statute of limitations due to "external forces beyond his control." But instead, he waited until almost a year later, in February of 2000, to file his § 2255 motion.
[W]e have recognized that the one-year period of limitations in § 2244(d)(1) of the AEDPA for filing the analogous § 2254 petition is not a jurisdictional bar and can be equitably tolled. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Although Davis involved the limitations period in § 2244(d)(1), applicable to § 2254 petitions, not § 2255 motions, we have recognized that the limitations provisions for §§ 2254 and 2255 are `nearly identical.' State v. Flores, 135 F.3d 1000. 1002 n. 7, (5th Cir. 1998). We further explained that because of the similarity of the actions brought pursuant to §§ 2254 and 2255, the federal courts have read them in pan matenia as long as the context did not render it improper. Id. Additionally, other circuits have held that the statute of limitations in § 2255 is subject to equitable tolling. See e.g., Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). As Flores instructs, we follow Davis's (sic) interpretation of the limitations provision for § 2254 and likewise conclude that the statute of limitations in § 2255 may be equitably tolled in "rare and exceptional circumstances." Davis, 158 F.3d at 811.
Considering all of the above circumstances, the Court does not believe there are `rare and exceptional circumstances' which would justify the application of the doctrine of equitable tolling in this case. Accordingly, IT IS ORDERED, ADJUDGED AND DECREED that Brown's Motion for Leave to File Late § 2255 Motion be and hereby is DENIED.