Opinion
3:16-cr-00351-MO
10-16-2021
UNITED STATES OF AMERICA v. AKIAZ MARQIEZ KING Defendant.
OPINION AND ORDER
MICHAEL W. MOSMAN, UNITED STATES DISTRICT JUDGE
This matter comes before me on Defendant Akiaz Marqiez King's Motion to Vacate or Correct Sentence [ECF 112]. For the reasons given below, I DENY King's motion.
BACKGROUND
In July 2017, Defendant Akiaz Marqiez King signed an agreement to plead guilty to sex trafficking in violation of 18 U.S.C. § 2421(a). Plea Pet. [ECF 52]; see also Plea Agreement [ECF 51]. This plea agreement contained a clause stipulating that King "may be required to register as a sex offender under state law." Plea Agreement [ECF 51] at ¶ 13. A few months later, King was given a nineteen-month prison sentence. J. & Commitment [ECF 62].
Soon after entering supervised release, King was told by his probation officer that he would have to register as a sex offender under Oregon law. Def's Emer. Mot. [ECF 64] at 2. King promptly challenged the requirement in state court, King v. Oregon Department of State Police, No. 18CV09039, and I directed the Probation Office to hold any action against King for not registering as a sex offender until those state proceedings terminated, Order [ECF 65]. Then-Multnomah County Circuit Court Judge Karin Immergut held that King was required to register as a sex offender. Sur-reply Mem., Ex. B [ECF 129]. King appealed to the Oregon Court of Appeals, which affirmed without opinion; the Oregon Supreme Court denied review. King v. Or. Dep't of State Police, No. A168712, 452 P.3d 1099 (Table) (Or. Ct. App. Nov. 27, 2019), review denied, 460 P.3d 1014 (Table) (Apr. 9, 2020).
On September 29, 2020, King filed the motion before me: a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Mot. to Vacate [ECF 112]. In this motion, King claims that his attorney was constitutionally deficient because he gave him inaccurate legal advice on his requirement to register as a sex offender under Oregon law. Id. at 5.
DISCUSSION
I. Timeliness
The government argues that King's Motion to Vacate should be dismissed as untimely. A defendant seeking relief under § 2255 must file a motion within a one-year statute of limitations. 28 U.S.C. § 2255(f). Four different kinds of events may start this clock, but courts only look at the one that happened latest. Id. The relevant starting point for this motion is "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Id. § 2255(f)(4). The parties disagree on when that date would be.
In its sur-reply, the government also contended that King's motion should fail on the merits. Sur-reply Mem. [ECF 129] at 12-21. Because King has not been afforded an opportunity to respond to the government's merits argument, this opinion only addresses the timeliness of King's motion. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ("[A]n argument raised for the first time in a reply brief... is not an argument we may consider here.").
King contends that he was only able to file his motion to vacate after the Oregon Supreme Court declined to review his motion for declaratory relief. See Mot. to Vacate [ECF 112] at 12. Until then, it was not clear to King that his lawyer had given him incorrect advice about his requirement to register as a sex offender under state law. Id. By this count, King could not file the instant motion until April 9, 2020, meaning his eventual filing on September 29, 2020 would be well within the statute of limitations for § 2255 actions.
On the other hand, the government contends that the facts supporting an inefficient counsel claim came to light long before the Oregon Supreme Court refused to take up King's state action. King, the government contends, was tipped off to the likelihood that he would need to register as a sex offender under state law on numerous occasions. In July 2017, when he signed a plea agreement stipulating he "may be required to register as a sex offender under sate law." Plea Agreement [ECF 51 ] at ¶ 13. In February 2018, when his probation officer told him he would have to register as a sex offender. Reply Br., Ex. 1. [ECF 127] at ¶ 7. And in August 2018, when Judge Immergut ruled that he would be required to register as a sex offender. Sur-reply Mem., Ex. B [ECF 129]. All these events occurred well over a year before King eventually filed.
The government has the better argument. The statute of limitations in a § 2255 action starts running "when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). At the very latest, King knew by August 2018 that he was required to register as a sex offender under state law. While he did not yet know that the Supreme Court of Oregon agreed with Judge Immergut, challenges to federal sentences do not require an exhaustion of state remedies. See 28 U.S.C. § 2255.
King relies on three cases to support his timeline: Johnson v. United States, 544 U.S. 295, 305-308 (2005); Sexton v. Wainwright, 968 F.3d 607, 613-14 (6th Cir. 2020); and Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th Cir. 2005). Reply Br. [ECF 127] at 6-7. These cases, taken together, stand for the general proposition that a state court decision can be a "fact" that restarts the statute of limitations in habeas cases. However, King stretches these cases too far. In Johnson, the Supreme Court found a state court decision vacating a predicate conviction for a prisoner's enhanced sentence could trigger a new one-year period. 544 U.S. at 302. But there, the vacatur was a "necessary predicate" to the prisoner's ability to obtain relief under § 2255. Id. at 305. Likewise, in Sexton, the state court proceeding was a "necessary factual predicate" for the petitioner's habeas claim. 968 F.3d at 613 (quoting Smith v. Meko, 709 Fed.Appx. 341, 346 (6th Cir. 2017)). And while Shannon recognizes a state court decision "in the petitioner's own case" may be a factual predicate for a habeas petition, it does not say that all such decisions are. See Shannon, 410 F.3d at 1088-89.
The Supreme Court of Oregon's denial of certiorari for King's state action was not a necessary predicate to his ability to obtain relief. King could have sought relief long before the Oregon Supreme Court endorsed Judge Immergut's order that King register as a sex offender. The decision did not remove a procedural hurdle, nor did it provide any new information to King. Instead, it merely provided additional confirmation of a fact that King was already aware of: Oregon law requires him to register as a sex offender. As such, I find King's motion is untimely.
II. Tolling
King contends that his motion should be subject to statutory and equitable tolling if it is found untimely. Reply Br. [ECF 127] at 9-10.1 disagree.
A. Statutory Tolling
Though § 2255 does not contain a provision for tolling, King asks that I read the tolling provision of 28 U.S.C. § 2244(d)(2) into § 2255. Reply Br. [ECF 127] at 9. Section 2244(d)(2) allows tolling for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." But such a device makes little sense in the context of § 2255 claims, where exhaustion of state remedies is not required. Nor does it make sense in the context of the instant case, where King is not challenging a state ruling, but rather legal advice given to him by his former attorney in a federal case. I therefore decline to extend § 2244(d)(2) in this manner and find that King's motion is not subject to statutory tolling.
On reply, King stated that he "reserves the right to fully brief, and seek a hearing on, the issues of equitable tolling." Reply Br. [ECF 127] at 10.1 find that King was accorded fair opportunity to present his position on equitable tolling and that additional briefing on the matter is unnecessary.
A petitioner is eligible for equitable tolling if he shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The two-part test constitutes a "very high" threshold. Id. (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). King has failed to show he fulfills either requirement of the test.
First, King has not shown that he has been pursuing his rights diligently. King argues he "demonstrated diligence in pursuing his remedies before the state court" and discusses how he has sought relief from the state's requirement that he register as a sex offender. Reply Br. [ECF 127] at 10. But a § 2255 motion attacks federal sentencing, not state sentencing. King has not established that he has diligently pursued his right to effective assistance of counsel, which is the right he claims in the instant motion. Even though he was aware that he was required to register as a sex offender under state law and that his attorney's advice to the contrary was incorrect as of at least February 2018, King did not file this motion until over two years later.
Second, King has not shown his timely filing was impeded by an extraordinary circumstance. Such an extraordinary circumstance must be "an external force...rather than...merely 'oversight, miscalculation or negligence on [the petitioner's] part.'" Waldron-Ramsey, 556 F.3d at 1011 (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)). But no external force prevented King from filing. Rather, King's filing was thwarted by an erroneous belief that he had to exhaust state remedies before he could challenge a federal sentence.
Because King has failed to show diligence in pursuing his ineffective assistance counsel claim or that an extraordinary circumstance stood in the way of his timely filing, I decline to apply equitable tolling to the instant motion.
III. Evidentiary Hearing Requirement
An evidentiary hearing is not required for a § 2255 petition where the record "conclusively show[s] that the movant is not entitled to relief." United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998). Because King's claim is time-barred, an evidentiary hearing on his claims is not necessary.
CONCLUSION
For the reasons discussed above, I DENY Defendant Akiaz Marqiez King's Motion to Vacate Sentence [ECF 112].
IT IS SO ORDERED.