Opinion
No. CV-19-2026-PHX-NVW (DMF) No. CR-12-1927-02-PHX-NVW
09-25-2019
United States of America, Plaintiff/Respondent, v. Steven Brewer, Defendant/Movant.
REPORT AND RECOMMENDATION
TO THE HONORABLE NEIL V. WAKE, SENIOR U.S. DISTRICT JUDGE:
Steven Brewer ("Movant") is an inmate detained at the Seagoville, Texas Federal Correctional Institution. On March 19, 2019, he filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 ("§ 2255 Motion") asserting nine claims for relief. (Doc. 1) Pending before the Court is Respondent's Motion to Dismiss Defendant's Motion Under 28 U.S.C. § 2255 filed on June 28, 2019. (Doc. 6) Movant filed a response and attachments. (Docs. 10, 14) Respondent filed a reply. (Doc. 16) Movant then filed a surreply to the Respondent's reply. (Doc. 17) For the reasons set forth below, undersigned recommends that the Court grant Respondent's motion to dismiss Movant's § 2255 Motion with prejudice.
Rule 3(d) of the Rules Governing § 2255 Proceedings "codifie[d] the prison mailbox rule, which states that a motion or other paper submitted by a prisoner is deemed filed as of the date he submits it to prison authorities for mailing if certain conditions are met." United States v. Winkles, 795 F.3d 1134, 1145-46 (9th Cir. 2015). The § 2255 Motion was accompanied by Movant's signed declaration that he placed the § 2255 Motion in the prison mailing system on March 19, 2019. (Doc. 1 at 13) The record also indicates that his mail was sent postage paid. (Doc. 1-1 at 1)
Citations to the record indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona under Case Numbers CV-19-2026-PHX-NVW (DMF) and CR-12-1927-02-PHX-NVW. Citations to documents within Movant's criminal case are denoted "CR Doc." Citations to documents in Movant's instant § 2255 matter are denoted "Doc."
I. BACKGROUND
A. Movant's convictions and sentence
After a trial by jury, Movant was found guilty of one count of conspiracy to commit wire fraud and money laundering, six counts of wire fraud, and twenty-one counts of money laundering, in violation of 18 §§ U.S.C. 371, 1343, and 1957(a), respectively. (CR Doc. 813 at 1, 4) On March 30, 2015, the Court sentenced Movant to a 188-month term of imprisonment followed by three years of supervised release. (Id.)
B. Movant's direct appeal
Movant and his co-defendants appealed their convictions, arguing District Judge Wake: (1) erred when he denied the defendants' motions for acquittal; (2) abused his discretion when conducting voir dire; (3) abused his discretion by allowing the prosecution to impeach Movant with his prior conviction; (4) abused his discretion by admitting summary charts detailing the disposition of the victim's money; (5) erred when questioning witnesses, including Movant; (6) erred when instructing the jury on Pinkerton liability using Ninth Circuit Model Criminal Jury Instruction 8.25; (7) erred in giving a money laundering jury instruction; and (8) abused his discretion in denying Movant's co-defendant's motion to sever. United States v. Kirby, 692 Fed.Appx. 334, 336-38 (9th Cir. 2017). The Ninth Circuit affirmed. Id.
Movant filed a petition for writ of certiorari which the United States Supreme Court denied on January 8, 2018. Brewer v. United States, 138 S.Ct. 688 (Jan. 8, 2018). Movant then filed a petition for rehearing with the Supreme Court, which the Court denied on March 26, 2018. Brewer v. United States, 138 S.Ct. 1346 (Mar. 26, 2018). . . .
C. Procedural history of the § 2255 Motion
On initial screening of the § 2255 Motion, District Judge Wake ordered dismissal of Grounds One, Four, and Nine and ordered Respondent to answer the remaining six grounds, which asserted claims of ineffective assistance of trial and/or appellate counsel. (Doc. 3, Doc. 1 at 25-26) Respondent then filed a motion for an order requiring Movant to execute a limited waiver of the attorney-client privilege as to his claims of ineffective assistance of counsel. (Doc. 4) On June 11, 2019, undersigned entered an order requiring Movant to either sign and file a limited waiver attached as an exhibit to the order, or to file a notice of withdrawal of his claims within 14 days of the date of the order. (Doc. 5) Respondent filed the pending motion to dismiss the § 2255 Motion on June 28, 2019. (Doc. 6)
On July 2, 2019, undersigned filed an order requiring Movant to show cause no later than July 31, 2019, why the Court should not dismiss his remaining grounds of the § 2255 Motion for failure to file a signed copy of the waiver provided him with the June 11, 2019 order. (Doc. 7) In a July 11, 2019, order granting Movant's motion for extension of time to respond to Respondent's motion to dismiss, undersigned allowed Movant until July 31, 2019, to file his response and ordered the Clerk of the Court to provide him with a copy of the June 11, 2019, order and also provide him with another copy of the limited waiver. (Doc. 9) Movant filed his response to the Court's order to show cause on July 22, 2019, and he attached a signed copy of the limited waiver. (Doc. 11 at 25-26)
Movant filed a response to the motion to dismiss, with additional attachments. (Docs. 10, 14) In August 2019, Respondent filed its reply in support of its motion to dismiss. (Doc. 16) On August 22, 2019, Movant filed his "Reply to Government's August 7, 2019 Response to His Motion for Equitable Tolling." (Doc. 17) This document is deemed a surreply to Respondent's reply on its motion to dismiss. Neither Movant's response to the motion to dismiss (Docs. 10, 14) nor the surreply (Doc. 17) is sworn, and neither is supported by any affidavit.
Undersigned has considered Movant's response (Doc. 10) despite that it exceeds authorized page limits and leave to exceed such page limits was not sought by Movant. See LRCiv 7.2(e).
The Court has discretion to permit the filing of a surreply, although "[a]s a general rule, surreplies are disfavored." Doe v. Exxon Mobil Corporation, 69 F.Supp.3d 75, 85 (D.D.C. 2014). Respondent did not file an objection to the Court's consideration of Movant's surreply. Exercising the discretion allowed this Court, undersigned has considered the surreply.
In addition to arguing for equitable tolling, Movant's surreply advances an irrelevant and erroneous interpretation of Rule 5 of the Rules Governing Section 2255 Proceedings and, on such basis, requests the Court to strike Respondent's reply to its motion to dismiss (Doc. 16). (Doc. 17 at 2-4) The Court declines to strike Respondent's reply.
II. MOVANT'S HABEAS GROUNDS
The remaining six grounds of the § 2255 Motion assert claims of ineffective assistance of counsel ("IAC"). In Ground Two, Movant argues his counsel was ineffective for "improperly advising [him] to testify." (Doc. 1 at 5) Movant contends in Ground Three that counsel failed to "object to the testimony of the government's expert witness." (Id. at 7) In Ground Five, Movant complains that trial and appellate counsel were ineffective by "failing to properly challenge [his] applicable guidelines calculation during sentencing and on appeal." (Id. at 8) Movant's Ground Six argument is that counsel was ineffective for failing to "challenge the Court's improper calculation of [his] applicable guidelines range." (Id.) In Ground Seven, Movant argues that counsel was ineffective for not challenging the Court's incorrect calculation of [his] applicable guidelines range based on 10 or more victims." (Id.) Movant's Ground Eight claim is that counsel was ineffective for not properly challenging "the Court's incorrect calculation of [his] applicable guideline range based on the use of sophisticated means." (Id. at 11) . . . . . .
III. DISCUSSION
Respondent urges that the § 2255 Motion is untimely because Movant filed it after the expiration of the applicable one-year statute of limitations. (Doc. 6 at 3-5) Whether the § 2255 Motion is time-barred by the statute of limitations is a threshold issue for the Court. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs Movant's § 2255 Motion because it was filed after April 24, 1996, the effective date of the AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)).
A. Statute of limitations
The AEDPA establishes a one-year limitations period for federal prisoners to file a motion collaterally attacking their convictions. The limitations period runs from the latest of, as is pertinent here, "the date on which the judgment of conviction becomes final[.]" 28 U.S.C. § 2255(f)(1). Although § 2255 does not define the term "final," the Supreme Court has applied its ordinary standard of finality. "Finality attaches when [the Supreme] Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527 (2003). See also Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) ("With respect to postconviction relief for federal prisoners, this Court has held that the conclusion of direct review occurs when 'this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari.'" (citing Clay, 537 U.S. at 527, 528-532)).
Movant was sentenced on March 30, 2015. (CR Doc. 813 at 1, 4) His appeal was denied by the Ninth Circuit on May 15, 2017. Kirby, 692 Fed.Appx. at 334. As noted, Movant filed a petition for writ of certiorari which the United States Supreme Court denied on January 8, 2018. Brewer, 138 S.Ct. 688. Movant then filed a petition for rehearing with the Supreme Court, which the Court denied on March 26, 2018. Brewer, 138 S.Ct. 1346.
Movant initially contended his § 2255 Motion was timely because he filed it within one year of the United States Supreme Court's March 26, 2018, denial of his petition for rehearing. (Doc. 1 at 15) Federal appeals courts, including the Ninth Circuit, have rejected the argument that finality for § 2255 statute of limitations purposes extends to the date of the Supreme Court's denial of a petition for rehearing. See United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (referring to the holdings of the First, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits relying on Supreme Court Rule 16.3, which provides that "'[w]henever the Court denies a petition for a writ of certiorari, the ... order of denial will not be suspended pending disposition of a petition for rehearing except by order of the Court or a Justice.'"); Rosa v. United States, 785 F.3d 856, 859-60 (2nd Cir. 2015) (joining the above-listed circuits' holdings that "the [§ 2255] statute of limitations runs from the denial of certiorari, not from the denial of rehearing of the certiorari petition."); United States v. Baxter, 761 F.3d 17, 30 (D.C. Cir. 2014).
Movant's one-year deadline for filing his § 2255 Motion, based on the date on which the judgment became final, 28 U.S.C. § 2255(f)(1), expired on Tuesday, January 8, 2019. Movant filed his § 2255 Motion on March 19, 2019 (Doc. 1), rendering his motion untimely by more than two months. The Court, therefore, need not reach the merits of Movant's claims unless he establishes a basis for equitable tolling or his actual innocence.
B. Equitable tolling
Although Movant initially asserted the § 2255 Motion was timely filed (Doc. 1 at 15), in his response to Respondent's motion to dismiss Movant concedes that his "§ 2255 motion was filed outside of the one-year limitation period set forth under § 2255(f)(1)." (Doc. 10 at 7) Movant argues, however, that he is entitled to equitable tolling of the limitations period (Id. beginning at 8; Doc. 17).
In order for a movant to be entitled to equitable tolling of AEDPA's 1-year limitations period, he must show: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (citation omitted). Equitable tolling is appropriate only "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (citations omitted) (tolling of statute of limitations due to extraordinary circumstances requires that a defendant diligently pursue his claim). A movant bears the burden of establishing that he pursued his rights diligently and that some extraordinary circumstances stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Grounds for equitable tolling are "highly fact-dependent." Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (citing Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (en banc)).
As basis for equitable tolling, Movant blames his reliance on the misconduct and misrepresentations by Steven Madondo ("Madondo"), a non-attorney who Movant states held himself out "as an attorney and a former federal official with significant ties within the federal judicial system." (Doc. 10 at 9) The Court shares Respondent's skepticism about the unsworn assertions of Movant and the legitimacy of the documents submitted in support of Movant's equitable tolling argument (see Doc. 16 at 2). Nevertheless, for purposes of this Report and Recommendation, undersigned will assume that Movant's account of what occurred regarding Madondo is true.
In support of his equitable tolling argument, Movant explains that after the Supreme Court denied his petition for certiorari in early January 2018, he and his then wife began to search for an attorney to assist him in filing a § 2255 habeas motion. (Doc. 10 at 9-10) Movant asserts that his wife spoke with Madondo of Madondo Consulting Group, LLC, and set up a conference call with Madondo, Movant, Movant's wife, and members of Movant's family. (Id. at 10; Doc. 17 at 5-6) During the conference call on or about March 5, 2018, Movant avers that Madondo represented that he not only was a former FBI agent and an attorney, but also that he had "contacts within the federal judiciary who he occasionally relied on to get results for his clients." (Doc. 10 at 11) Movant states that Madondo explained he would "ensure a favorable outcome" by using his "connections within the federal judiciary and legal circle" and by moving to transfer Movant's case to another federal district court where he maintained contacts to make sure that Movant would obtain an appeal bond. (Id. at 12) Movant further states that the "discussion with Mr. Madondo was also influenced by the fact that Petitioner's family believed that in order to obtain any type of meaningful relief within the federal legal system, some type of backdoor deal has to be made as opposed to presenting sound legal issues that are backed by clear points of law." (Id. at 11-12, footnote 7)
Movant asserts that on or around March 20, 2018, his wife entered into a "consulting agreement" with Madondo for the purposes of obtaining his services. (Id. at 13-14) The two copies of the "Consulting Agreement" between Movant's wife and Madondo submitted by Movant do not state that Madondo is a lawyer or that the company, Madondo Consulting Group, LLC, is a law firm. (Id. at 14, 31-34; Doc. 14 at 22-24)
Attached to Movant's response are letters purportedly from Movant to Madondo dated May 1, 2018, July 10, 2018, and August 23, 2018, expressing Movant's concern that Madondo had not yet sent Movant any draft of a § 2255 motion (Id. at 38-40). Each of these letters expressed Movant's knowledge that there was something wrong in that he had not yet received a draft and also conveyed a time urgency to filing his habeas paperwork. (Id.) On August 23, 2018, from prison, Movant wrote to Madondo stating, among other things:
You stated that you intended to file on my behalf. Each time you speak with me and my family, you tell us that your review of my case is almost complete and your staff or paralegals will finalize something in writing. It has taken much longer than we ever expected. If you are not going to handle my case, I need to know now, so I can move on and file the motion myself.(Id. at 38)
Movant's response states that in December 2018, months after the August 2018 and previous letters, Movant received a draft of Madondo's § 2255 motion which Madondo told Movant had been ghostwritten for Madondo's firm by an unidentified former Assistant U.S. Attorney and judge. (Id. at 17-18) Movant asserts that after reviewing the draft, it was clear to him that Madondo's work product lacked substance and that Movant was "in trouble." (Id. at 18) Movant states he was stymied from drafting a § 2255 motion himself because Madondo would not return his legal documents to him until Madondo was paid the full fee owed under the consulting agreement. (Id. at 18-21) Movant asserts that his wife eventually was able to obtain the necessary legal documents from Movant's co-defendant Joel Cutulle, and that Movant was then able to draft the Motion, which he mailed on March 19, 2019, from prison. (Id. at 21) Movant believed that his pro per Motion was within the filing deadline of March 26, 2019. (Id. at 18 n.18)
Movant argues that his involvement with Madondo represents an "extraordinary circumstance" that was "external" to him and also "beyond his control." (Id., citing Velasquez v. Kirkland, 639 F.3d 964, 969 (9th Cir. 2011)) Movant explained that as "months went by [with] nothing being done in his case, he became concerned about whether his § 2255 would be filed on time." (Id. at 16) Movant avers that Madondo assured him that the limitations period would expire one year after the final decision by the Supreme Court, which was the date the Court had denied his petition for rehearing. (Id. at 16) Movant explains he accepted Madondo's assurances because in Movant's mind "the information appeared logical, particularly given the fact that it is precisely the same format that exists at the appellate stage." (Id. n.15) Movant states that "[i]t is now clear that this information [is] inaccurate." (Id.) Even after his rejection of Madondo's draft petition that Movant describes as "aimlessly and arbitrarily put together" (Id. at 18), Movant declares he continued to assume he had until March 26, 2019, to file his § 2255 motion (Id. at 18-19 n.18).
1. Madondo's mistaken advice on the limitations period
Madondo's mistaken advice is not a proper basis for equitable tolling of the limitations period. The Ninth Circuit has instructed that
[a]ttorney mistakes that warrant the label "garden variety"—like miscalculating a filing deadline—are the sorts of mistakes that, regrettably, lawyers make all the time. They are mistakes made routinely enough that they're regarded as one of the risks petitioners typically assume when relying on counsel to litigate a case, rather than as an extraordinary circumstance warranting equitable intervention. Courts do not recognize run-of-the-mill mistakes as grounds for equitable tolling because doing so "would essentially
equitably toll limitations periods for every person whose attorney missed a deadline." Lawrence [v. Florida], 549 U.S. [327,] 336 (2007).Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015). Moreover, even though Madondo was not an attorney, undersigned sees no reason why this circumstance would alter the applicability of the courts' reasoning to representation by a non-attorney whom a habeas movant assumed or was led to believe was an attorney. "Because attorney negligence in calculating the AEDPA timeline is not an extraordinary circumstance warranting equitable tolling, it does not seem that nonattorney negligence, assuming such negligence exists here, would warrant equitable tolling." Rolle v. Florida, No. 4:10cv152-MP/CAS, 2012 WL 7808122, at *5 (N.D. Fla. Nov. 8, 2012). Movant cites no cases, and undersigned was unable to identify any cases, holding that misconduct by a non-attorney was a basis for applying equitable tolling.
This conclusion is consistent with the Ninth Circuit's holding in an unpublished decision that a petitioner's "allegation that prison law clerks misadvised him regarding the statute of limitations applicable to his § 2254 petition does not constitute 'extraordinary circumstances' entitling him to equitable tolling of AEDPA's statute of limitations." Jackson v. Del Papa, 91 Fed.Appx. 592, 593 (9th Cir. 2004) (citing Marsh v. Soares, 223 F.3d 1217, 1220-21 (10th Cir. 2000) (holding that incompetence of an inmate law clerk did not create "extraordinary circumstances" warranting equitable tolling)).
If Movant had not been represented at all, this also would not justify application of equitable tolling. The Ninth Circuit has joined other circuits in holding that a pro se movant's lack of legal sophistication and inability to correctly calculate a limitations period is not an extraordinary circumstance warranting equitable tolling. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Thus, a mistaken assumption of when the statute of limitations period ran, whether made by an attorney, a non-attorney, or Movant himself does not provide grounds for equitable tolling. In addition, given all of the problems that Movant himself describes with obtaining timely and quality work from Madondo, Movant's asserted reliance on Madondo for an accurate statute of limitations expiration date does not provide grounds for equitable tolling.
2. Movant's lack of good faith or diligence
"[T]he purpose of the equitable tolling doctrine is to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having his day in court, and to prevent the unjust technical forfeiture of causes of action." United States v. Buckles, 647 F.3d 883, 891 (9th Cir. 2011) (citations and internal quotation marks omitted). The importance of good faith by one seeking equity has been underscored by the Supreme Court, which declared that the "equitable maxim that 'he who comes into equity must come with clean hands[]' . . . is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with the inequitableness or bad faith relative to the matter in which he seeks relief." Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945).
This principle provides context to Movant's and his family's interest in consulting with Madondo, who offered his contacts and connections within the federal judiciary and legal circle to obtain favorable results for his clients, including to "ensure that [Movant] would be given an appeal bond" after having his case removed from Arizona to the District of Columbia. (Id. at 11-12) Movant further declared that he had been reassured by Madondo's explanation that although he had not provided any evidence of progress on Movant's case, he had been "working back channels to ensure that [Movant] obtained the relief he sought." (Id. at 16) Movant noted that he and his wife "interpreted this to mean that Mr. Madondo had reached out to his contacts within the federal courts as he initially explained he would do." (Id. n.16)
Movant reiterates in his surreply that he and his family hired Madondo believing that Madondo "did in fact have contacts within the federal judiciary who he occasionally relied on to get results for his clients" and that Madondo "was working back channels." (Doc. 17 at 8) (internal quotations omitted) Movant's surreply argues that it was not a lack of diligence or good faith for him to hire Madondo because "Madondo was selling his services like any other attorney soliciting work" and Movant and his family merely "bought into what he was selling." (Doc. 17 at 5) Yet, Movant freely admitted that his and his family's decision to use Madondo was "influenced by the fact that Petitioner's family believed that in order to obtain any type of meaningful relief within the federal legal system, some type of backdoor deal has to be made as opposed to presenting sound legal issues that are backed by clear points of law." (Doc. 10 at 11-12 n.7)
Undersigned agrees with Respondent's conclusion that Movant hired Madondo "precisely because of his proclaimed ability to subvert the legal system and illegitimately achieve a favorable result" (Doc. 16 at 4), a motivation that indicates bad faith and which militates against equitable relief.
Apart from the bad faith, Movant was not diligent. In circumstances in which attorney misconduct is the claimed circumstance causing untimeliness, courts will assess issues such as: (1) "whether the petitioner expeditiously secured counsel to file the habeas petition"; (2) "the frequency and nature of the attorney-client communications"; (3) "when, in light of the petitioner's education and background, he reasonably should have sought new counsel; and (4) "whether the petitioner had the means to consult alternate counsel." Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011). In weighing the factors pertinent when there is claimed attorney misconduct, the Court must consider whether, in light of Movant's education and background, he reasonably should have believed that Mr. Madondo was an attorney in the first place.
Movant filed unsigned copies of two consulting agreements between Movant and his wife and Madondo Consulting Group, LLC, one drafted to be executed on March 20, 2018 (Doc. 10 at 32-34), and the other drafted to be executed on March 21, 2018 (Doc. 14 at 22-24). Both versions of the consulting agreement are replete with typographical and grammatical errors, and misspellings. Further, the agreements nowhere indicate that Mr. Madondo is an attorney or that he or any employee or subcontractor associated with Madondo Consulting Group was an attorney. (Doc. 10 at 32-34, Doc. 14 at 22-24). Although neither copy of the agreement was signed, the signature line for Madondo Consulting Group, LLC was by "Steven Madondo, President" rather than a reference to Madondo as an attorney. (Doc. 10 at 34, Doc. 14 at 24)
The primary difference between the two drafts is in clause 2, describing Movant's payment obligation under the agreement. (Doc. 10 at 32, Doc. 14 at 22)
The presentence investigation report prepared in advance of Movant's sentencing indicated that Movant had a high school education and was enrolled in a real estate course at a community college several years after high school graduation. (CR Doc. 686 at 23) Also, it was reported that he obtained an apprenticeship certificate for the occupation of paralegal while imprisoned in 2000. (Id.) Movant owned and operated a construction company between 2002 and 2013 and worked for the company as a general contractor and project manager. (Id. at 24) Given Movant's background as a certified paralegal and in business and management, and the absence of evidence that he took any action to verify Madondo's credentials, undersigned concludes that Movant was not diligent in verifying that Madondo was an attorney.
Movant argues that his being in prison excuses that he made no efforts to confirm that Madondo was a licensed attorney (Doc. 17 at 7), but Movant also stated that the facility where he was housed in 2018 "offers a hybrid email service to the inmate population to communicate with individuals on the outside via text." (Doc. 10 at 9, footnote 11) Further, Movant attaches correspondence between him and the State Bar of Georgia that Movant represents he initiated in 2019 during his incarceration. (Doc. 14 at 17-19) This correspondence demonstrates that Movant being in prison was not an impediment to independently checking on whether Madondo was actually an attorney.
Movant argues that he reasonably relied on Madondo based on his understanding of how the criminal system operates as inaccurately informed by "social media, traditional media, and TV shows that sensationalize courtroom dramas." (Doc. 17 at 8) This argument is unpersuasive, particularly given that Movant was represented by counsel in the underlying case to this habeas motion and that Movant's presentence report in his criminal case indicates that he was represented by counsel in convictions in Texas in 1980, 1982, 1985, 1986, 1987, 1993, and 1996. (CR Doc. 686 at 16-20)
Movant's own letters show that by August, 2018, months before the January 8, 2019, statute of limitations deadline expired, Movant knew that having not yet received a draft from Madondo was a sign that things were astray, that Madondo's reassurances to Movant and his family were insincere, and that filing Movant's habeas paperwork had already become time urgent. (Doc. 10 at 38-40)
Even if Movant's failure to timely file his Motion was due to Movant's reliance on Madondo, including reliance on Madondo's mistaken calculation of the statute of limitations and on Madondo to prepare Movant's habeas paperwork, Movant's argument for equitable tolling fails. Movant's reliance on Madondo was premised on bad faith and a lack of diligence.
C. Movant does not argue an actual innocence exception
In McQuiggin v. Perkins, 569 U.S. 383 (2013), the United States Supreme Court recognized an exception to the AEDPA statute of limitations for a claim of actual innocence. The Court adopted the actual innocence gateway previously recognized in Schlup v. Delo, 513 U.S. 298, 314-15 (1995), to excuse the bar to federal habeas corpus review of procedurally defaulted claims. McQuiggin, 569 U.S. at 386-87 (citing Schlup, 513 U.S. at 937-38.) The rule announced in McQuiggin does not provide for an extension of the time statutorily prescribed, but instead is an equitable exception to AEDPA's statute of limitations. Id. at 392. Actual innocence, if proven, merely allows a federal court to address the merits of a movant's otherwise time-barred constitutional claims.
Movant does not argue he has a credible claim of actual innocence and accordingly, no such equitable exception to the statute of limitations applies.
D. Evidentiary hearing
An evidentiary hearing is not warranted regarding Movant's claims, including equitable tolling, because the record is sufficiently developed to resolve the question of whether the Motion is timely. A habeas Movant asserting equitable tolling "should receive an evidentiary hearing when he makes 'a good-faith allegation that would, if true, entitle him to equitable tolling.'" Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quoting Lamarque, 351 F.3d at 921). Here, undersigned assumed all of Movant's account of what occurred was true and found that based on Movant's own account, Movant was not entitled to equitable tolling. Thus, an evidentiary hearing is not warranted.
IV. CONCLUSION
Based on the above analysis, the Court finds that Movant's § 2255 Motion is untimely. The Court will therefore recommend that the § 2255 Motion (Doc. 1) be dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Respondent's Motion to Dismiss Defendant's Motion Under 28 U.S.C. § 2255 (Doc. 6) be granted.
IT IS FURTHER RECOMMENDED that Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. 1) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Motion is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendations of the Magistrate Judge.
Dated this 25th day of September, 2019.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge