United States District Court, W.D. Pennsylvania
October 17, 2005.
UNITED STATES OF AMERICA
FRED JOHNSON, Defendant.
The opinion of the court was delivered by: TERRENCE McVERRY, District Judge
MEMORANDUM OPINION AND ORDER OF COURT
Before the Court for consideration and disposition are a MOTION
TO RECONSIDER ORDER TO FILE PETITION TO VACATE SENTENCE UNDER
28 U.S.C. § 2255 (Motion to Reconsider") (Document No. 35), filed
pro se, a PETITION FOR LEAVE FOR DEFENDANT TO FILE FIRST MOTION
FOR WRIT OF HABEAS CORPUS NUNC PRO TUNC ("Petition for Leave")
(Document No. 37) filed by counsel for Fred Johnson, and the
GOVERNMENT'S OPPOSITION TO DEFENDANT'S MOTION TO RECONSIDER ORDER
TO FILE PETITION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 AND
DEFENDANT'S PETITION FOR LEAVE TO FILE FIRST MOTION FOR WRIT OF
HABEAS CORPUS NUNC PRO TUNC ("Response") (Document No. 39). For
the following reasons, the motion and petition will be denied.
On May 10, 2001 defendant Fred Johnson ("Johnson") entered a
plea of guilty to all counts of a three-count Indictment before
the Honorable Donald E. Ziegler. Counts One and Two charged
Johnson with distribution of and possession with intent to
distribute heroin, while Count Three charged Johnson with
distribution of and possession with intent to distribute cocaine
base, i.e., crack. On July 24, 2001 Judge Ziegler sentenced
Johnson to a 151 month term of imprisonment. The judgment of
conviction was also entered on July 24, 2001. See Document No.
28. No notice of appeal was filed, and the judgment of conviction
became final on August 3, 2001 when the 10-day time period for
filing a notice of appeal expired. See Federal Rule of
Appellate Procedure 4(b)(1)(A)(i); United States v. Viola, No.
CIV.A. 02-9014, 2003 WL 21545108, *1 (E.D. Pa. July 7, 2003) ("If
no direct appeal is taken, the judgment of conviction is final 10 days after entry of the judgment on the district court's
On August 7, 2002, a letter dated August 1, 2002 from Johnson
to the "Clerk of the U.S. Courts of Appeals for the Third
District" was entered on this Court's docket as a notice of
appeal from Johnson's judgment of conviction (the "First
Letter"). See Document No. 31. The complete text of the letter
is as follows: "Dear Clerk; In United States v. Fred Johnson,
Docket #00-00177-001, I would like to appeal my sentencing. I am
about fourteen days past the dead line (sic) to appeal, please
forgive me and place me on the Appeals docket. Thank you.
Sincerely, Fred Johnson." See Document No. 31. In fact,
Johnson's notice of appeal was filed exactly one year and
fourteen days after the judgment of conviction was entered, and
was therefore untimely. The case file also contains another
letter dated August 1, 2002 from Johnson to the Clerk of the
Third Circuit (the "Second Letter"). The Second Letter reads as
follows: "Dear Clerk; Please appoint me a lawyer to do my appeal.
I will be filing a § 2255 on my former lawyer. Thank you.
Sincerely, Fred Johnson." It is not clear whether Johnson mailed
this letter to the District Court or the Third Circuit.
The Clerk of Courts sent the record to the Third Circuit on
August 7, 2002, which was the same day that Johnson's untimely
notice of appeal was filed. By Order of August 9, 2004, a panel
of the Third Circuit concluded that Johnson's notice of appeal
was untimely, and that the Third Circuit lacked jurisdiction to
hear the appeal. See Document No. 32. The Third Circuit also
remanded the appeal to this Court "so that the District Court may
consider whether the document submitted by Appellant and treated
as a notice of appeal should be construed as a petition to vacate
sentence under 28 U.S.C. § 2255." Id. However, the Third
Circuit cautioned that it "is not expressing any opinion on
whether the document may be so construed nor whether the District
Court has jurisdiction to grant Appellant relief under that
In a Memorandum Order filed on July 1, 2005, this Court ruled
that Johnson's letter filed on August 7, 2002 (the "First
Letter") could not be construed as a petition to vacate sentence
under 28 U.S.C. § 2255, and that the letter was properly
construed as a notice of appeal by the Clerk of Courts. See
Document No. 34. The Court observed that "[t]he language of the
letter makes no reference whatsoever to section 2255, nor does it
make any other request for relief other than to be "place[d] on the Appeals docket." See id.
Thereafter, counsel was appointed to advise Johnson of his right
to file a petition pursuant to 28 U.S.C. § 2255, which culminated
in the filing of the above-referenced Petition for Leave on
August 22, 2005. At approximately the same time that counsel was
appointed, Johnson filed his pro se Motion to
Johnson contends in his Motion to Reconsider that "[t]he
District Court denied Petitioner's right to construe Johnson's
letter dated August 1, 2002, as a petition to vacate sentence
under 28 U.S.C. § 2255," and he "prays that the Court reconsider
and vacate it's (sic) previous order and that the Court
reinstates (sic) Petitioner's right to file a 28 U.S.C. § 2255
Motion to Vacate and appoint him counsel, and or conduct an
evidentiary hearing on this matter." Motion to Reconsider at 2,
4.*fn2 Johnson's argument in support of reinstating his
right to file a section 2255 petition is as follows:
The Petitioner informed his former attorney, Jay J.
Finkelstein on June 29, 2002, that he intended to
file a 28 U.S.C. § 2255 and that he needed his help
and advise (sic) on how to file a 28 U.S.C. § 2255
Motion to Vacate sentence. The attorney, Jay J.
Finkelstein, said to me over the phone that he would
get back with me soon, but never did.
The petitioner knew that there was a time limitation
for filing a 28 U.S.C. § 2255 Motion to Vacate
Sentence. So on August 1, 2002, two days before the
deadline the Petitioner sent 2 letters to the Court
system. One to the Clerk of the U.S. Court of Appeals
for the Third District and the other letter to the
Western District of Pennsylvania U.S. Clerk of Courts, informing the
Court that he wanted to file a 28 U.S.C. § 2255
Motion, but didn't have the know how and his attorney
would not help him or communicate with him.
* * *
The Petitioner sent the letters as a Notice to the
Court of his intent to file a 28 U.S.C. § 2255 Motion
to Vacate before the one-year time limitation
Motion to Reconsider at 2-4.
The Petition for Leave argues that Johnson's Second Letter
should "be accepted by this Court as his best effort to obtain
relief under 28 U.S.C. § 2255," and that Johnson should "be
permitted to file, by a specified date, a Motion for Writ of
Habeas Corpus as if he had done so within the one year limitation
period." Petition for Leave at 3. The Petition for Leave also
suggests that the circumstances of this case warrant the
application of equitable tolling. Id. at 2-3.
The Court finds and rules that it is not reasonable to construe
either of the two letters dated August 1, 2002 as a petition to
vacate sentence under 28 U.S.C. § 2255. The First Letter is
clearly a pro se notice of appeal, and cannot reasonably be
construed otherwise. The Second Letter is clearly a request for
the appointment of an attorney "to do my appeal" with his
expression of an intention to file a section 2255 petition, and
cannot reasonably be construed otherwise. Although the Court is
obligated to, and does, construe Johnson's pro se letters (and
Motion to Reconsider) in a light most favorable to him, there is
no basis in fact or law for Johnson's request to transform either
the First or Second Letter into a section 2255 petition. Indeed,
Johnson essentially admits that the Second Letter is not a
section 2255 petition when he states that the letters were sent
"to inform the Court of his intentions to want to file a
28 U.S.C. § 2255 . . ." Motion to Reconsider at ¶ 8.
The Court also finds and rules that the facts alleged by
Johnson, i.e. his alleged communication problems with his trial
counsel, do not justify equitable tolling. First, a prisoner has
no right to the assistance of counsel in preparing a section 2255
petition. See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). Second, the one-year statute of limitations period
established by the AEDPA is subject to equitable tolling only in
rare circumstances. In Miller v. New Jersey State Dept. of
Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998) the Third Circuit provided the following guidance:
[W]e observe that equitable tolling is proper only
when the principles of equity would make the rigid
application of a limitation period unfair. Generally,
this will occur when the petitioner has in some
extraordinary way been prevented from asserting his
or her rights. The petitioner must show that he or
she exercised reasonable diligence in investigating
and bringing the claims. Mere excusable neglect is
Miller, 145 F.3d at 618-19 (citations, quotations and brackets
omitted). One year later, in Jones v. Morton, 195 F.3d 153
(3d Cir. 1999), the Third Circuit held that "equitable tolling
may be appropriate if (1) the defendant has actively misled the
plaintiff, (2) if the plaintiff has in some extraordinary way
been prevented from asserting his rights, or (3) if the plaintiff
has timely asserted his rights mistakenly in the wrong forum."
(citations and quotation marks admitted). Finally, "[i]n
non-capital cases, attorney error, inadequate research, or other
mistakes have not been found to rise to the extraordinary
circumstances required for equitable tolling." Fahy v. Horn,
240 F.3d 239, 244, cert. denied, 534 U.S. 944 (2001).
The letters authored by Johnson and the factual allegations of
his Motion to Reconsider, taken as true,*fn3 demonstrate
that Johnson wanted to appeal and/or file a section 2255
petition, lacked the know-how to do so independently, and sought
the assistance of his trial counsel, who "said . . . that he
would get back to [Johnson] soon, but never did." Motion to
Reconsider at ¶ 6. Johnson then sent the First Letter and the
Second Letter "to the Court on August 1, 2002, to inform the
Court of his intentions to want to file a 28 U.S.C. § 2255 and
looking to the Court for guidance and ask for an appointment of
counsel." Id. at ¶ 8. The facts alleged by Johnson demonstrate
that he did not exercise reasonable diligence in investigating
and bringing any claim(s) he might have under section 2255, and
that his failure to file a section 2255 petition can fairly be
attributed to inadequate research (or no research whatsoever).
Therefore, the Court will deny Johnson's Motion to Reconsider and
counsel's Petition for Leave. ORDER OF COURT
AND NOW, this 17th day of October, 2005, in accordance with the
foregoing Memorandum Opinion it is hereby ORDERED, ADJUDGED and
DECREED that the pro se Motion to Reconsider Order to File
Petition to Vacate Sentence Under 28 U.S.C. § 2255 (Document No.
35) and counsel's Petition for Leave for Defendant to File First
Motion for Writ of Habeas Corpus Nunc Pro Tunc (Document No.
37) are DENIED.
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