Opinion
Case No. 96-40057-DES, 01-3240-DES.
October 12, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. 123). The government has filed a Response (Doc. 127), and defendant has filed a Reply (Doc. 129). Defendant's Motion for Leave (Doc. 135) to file a supplement to his original § 2255 motion is also presently pending before the court. For the following reasons, defendant's original § 2255 motion is denied and his supplemental motion shall be transferred to the United States Court of Appeals for the Tenth Circuit.
I. BACKGROUND
On December 13, 1999, pursuant to a written plea agreement, defendant pled guilty before this court to a single count of conspiring to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. As part of defendant's written plea agreement, defendant waived his right to collaterally attack his sentence by filing a motion pursuant to § 2255; provided the court sentenced him within the applicable guideline range.
On March 22, 2000, the court sentenced defendant to a term of 120 months of incarceration and five years of supervised release. The court entered this judgment on March 29, 2000, and defendant did not appeal his conviction.
On June 18, 2001, the instant § 2255 motion was filed. Defendant asserts four grounds in support of his motion: first, the indictment fails to allege defendant "knowingly" manufactured methamphetamine; second, the five-year supervised release term exceeds the statutory maximum; third, the court incorrectly calculated the quantity of methamphetamine attributable to him; and fourth, his counsel was ineffective for not challenging his criminal history category computation. The government raises both procedural and substantive arguments in opposition to defendant's motion.
II. DISCUSSION
A. Timeliness of Defendant's Motion
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a defendant's ability to file a § 2255 motion is limited by a one-year time period. The relevant portion of § 2255 states:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest —
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially 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 due diligence.28 U.S.C. § 2255.
As noted above, the court entered judgment in this case on March 29, 2000. Defendant had ten days after this date in which to file his notice of appeal. Fed.R.App.P. 4(b)(1)(A) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after . . . (i) the entry of either the judgment or the order being appealed . . . ."). Defendant's conviction, therefore, became final when the ten-day notice period expired on April 8, 2000. The instant motion was filed on June 18, 2001, which clearly demonstrates the motion is untimely under § 2255(1).
Defendant asserts he placed the § 2255 motion in the "institutional mail" on June 13, 2001, so the court should consider this date instead of the date the motion was filed with the court's clerk. See Houston v. Lack, 487 U.S. 266 (1988) (identifying the prison "mail-box" rule). In any event, the five day difference fails to make defendant's motion timely.
Defendant, however, asserts the one-year time period should not run from the date his conviction became final, but, rather, the time should run, according to subsection two, from the date the "impediment" to filing his motion was removed. 28 U.S.C. § 2255(2). Defendant describes this impediment as two-fold: first, his repeated transfers from various penitentiaries compromised his ability to craft his § 2255 motion; and second, the available prison law libraries were insufficient and failed to have materials on hand for visually impaired inmates.
Although defendant couches his argument under the "impediment" subsection, § 2255(2), the court is persuaded by the following considerations to interpret the argument as a request to equitably toll the time period. First, the statutory language of § 2255(2) "deals solely with when the limitations period begins to run, not to extensions of the one-year period once it has commenced." United States v. Reed, No. 97-6316, 1998 WL 817750, at *1 (10th Cir. Nov. 27, 1998). Defendant's filing states that until his transfers ceased in April 2001, he was unable to appropriately gather his "legal papers" and draft his § 2255 motion. To delay the commencement of the time period till April 2001, the court would have to be convinced that such transfers were "governmental action in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(2). Defendant's arguments are unpersuasive, and the court finds that the transfer of an inmate fails to meet this standard. See United States v. Clover, No. 99-5043, 2000 WL 743675, at *7 (10th Cir. June 9, 2000) (finding no impediment under § 2255(2) when there was no governmental action in violation of the Constitution or laws of the United States).
Second, while inadequate library facilities may equate to a denial of a prisoner's access to the courts "in violation of the Constitution or laws of the United States," a prisoner's vague allegations regarding these madequacies is insufficient. See Lewis v. Casey, 518 U.S. 343, 351 (1996) ("Because Bounds [v. Smith, 430 U.S. 817 (1977)] did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense."). In the present case, defendant has only stated that the libraries failed to have "legal materials" for the visually impaired. Defendant has not submitted in any specific manner what materials were lacking or how their scarcity "hindered his efforts to pursue a legal claim." Id. For these reasons, the court finds it more appropriate to liberally construe defendant's argument as seeking an equitable extension of the one-year time period.
The following represents the total of defendant's arguments regarding the prisons' law libraries:
Furthermore, [defendant] was also hindered by his eyesight which is medically reported as "legally bind." . . . [N]one of the institutions where [defendant] has been transferred to and held provide "legal materials" for blind or visually impaired inmates. This includes the so called "law clerks" who are inmates that assist with shelving books and pulling cases, but are not allowed to research, draft, or type legal pleadings and petitions on behalf of inmates.
(Def. Reply at 9-10).
In Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), the Tenth Circuit noted that in appropriate exceptional circumstances equitable tolling principles may apply to the one-year limitations period under § 2255. A review of defendant's filing convinces the court his allegations are insufficient to invoke equitable tolling. Transfers to and from various institutions, while inconvenient for inmates, by no means equate to an exceptional circumstance. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) ("Equitable tolling would be appropriate, for example, when a prisoner is actually innocent, when an adversary's conduct-or other uncontrollable circumstances — prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period.") (internal citations omitted). The court finds defendant's inconvenience during transfer did not rise to such a level as to prevent defendant from timely filing.
Also, once again, defendant's general allegations regarding the library facilities are inadequate. See id. ("a claim of insufficient access to relevant law, . . . is not enough to support equitable tolling"); Reed, 1998 WL 817750 at *2 ("Reed's bare allegations [of limited library use and lack of forms] are insufficient to invoke equitable tolling."). The court would also question the extent of the libraries' inadequacies considering the competency of the papers actually filed by defendant in this matter. For these reasons, the court declines to exercise its equitable powers and toll § 2255's statute of limitations. Finding defendant's motion untimely, the court must deny all relief and dismiss the motion.
In refuting the claim that his motion is untimely, defendant cites to Apprendi v. New Jersey, 530 U.S. 466 (2000). To the extent defendant argues Apprendi tolls the statute of limitations, the court disagrees. First, the Tenth Circuit has joined the majority of circuits in holding that the Supreme Court has not yet made Apprendi retroactively applicable to cases on collateral review. Browning v. United States, 241 F.3d 1262, 1265 (10th Cir. 2001). Second, the court agrees with the majority of courts in this district, which found the rule established in Apprendi fails to satisfy the retroactive application exceptions of Teague v. Lane, 489 U.S. 288, 309 (1989). See, e.g., United States v. Moss, 137 F. Supp.2d 1249, 1252-54 (D. Kan. 2001). Third, even if Apprendi were applicable, the court finds defendant's sentence "as not in violation. Defendant's sentence of ten years is well within the statutory maximum of twenty years set forth in 21 U.S.C. § 841(b)(1)(C).
B. Supplemental Motion
Defendant has filed a Motion for Leave (Doc. 135) to file a supplement to his original § 2255 motion. The supplemental motion raises three additional grounds for relief. The court finds the supplemental motion raises three independent claims when compared to defendant's original § 2255 motion. This finding dictates that the court consider the supplemental motion as a second or successive motion under § 2255. It is axiomatic that if the original motion was untimely, then the supplemental motion must also be untimely. The court, however, is procedurally without jurisdiction to dismiss the supplemental motion. Under § 2255, a defendant bringing a second or successive motion must first seek authorization from a court of appeals panel. 28 U.S.C. § 2255. Absent such authorization, the court may not consider the successive motion. United States v. Avila-Avila, 132 F.3d 1347, 1348-49 (10th Cir. 1997). The court is, therefore, required to transfer the motion to the court of appeals for possible authorization. Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997).
On September 21, 2001, defendant filed a motion (Doc. 134) seekng an extension on the filing date for his supplement to his § 2255 motion. Thereafter, on September 27, 2001, defendant filed the instant motion requesting leave to file the supplement. The court considers the motion for extension frivolous and will deny it summarily.
The supplemental motion raises the following grounds:
1. Rule 11(c)(6) was violated during the plea hearing and thus renders the plea of guilty involuntary and requires this court to allow [defendant] to withdraw his plea of guilty.
. . . .
2. The court erred when not applying USSG § 5G1.3 and adjusting [defendant's] sentence based on time spent in custody.
. . . .
3. Rule 11(c) was not followed in the change-of-plea hearing, thus further rendering the guilty plea involuntary.
(Def. Supp. Mot. at 1-6).
IT IS THEREFORE BY THIS COURT ORDERED that defendant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. 123) and defendant's Motion for Enlargement of Time (Doc. 134) are denied.
IT IS FURTHER BY THIS COURT ORDERED that defendant' s Motion for Leave (Doc. 135) to file a supplement to his § 2255 motion is transferred to the United States Court of Appeals for the Tenth Circuit. The clerk of the court shall mail the motion and a copy of this order to the United States Court of Appeals for the Tenth Circuit.