United States District Court, W.D. Pennsylvania
OPINION AND ORDER SYNOPSIS
Donetta W. Ambrose Senior Judge.
matter, on January 7, 2013, a jury convicted Defendant of one
count of conspiring to distribute heroin, in violation of 21
U.S.C. § 846. On December 17, 2012, he was sentenced to
a term of imprisonment of 130 months. On appeal, by Opinion
dated October 10, 2013, the United States Court of Appeals
for the Third Circuit affirmed his conviction, and his
petition for certiorari was denied on January 13, 2014.
Subsequently, pursuant to 18 U.S.C. § 3582,
Defendant's sentence was reduced to 121
months. Before the Court is Defendant's Motion
pursuant to 28 U.S.C. § 2255, in which he contends that
counsel was ineffective in various ways relating to plea
negotiations and trial. For the following reasons,
Defendant's Motion will be denied, and no certificate of
appealability shall issue.
is available under Section 2255 only under exceptional
circumstances, when the claimed errors of law are "a
fundamental defect which inherently results in a complete
miscarriage of justice, " or "an omission
inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S.
424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). A district
court need not hold an evidentiary hearing on a Section 2255
motion if the motion, files, and records show conclusively
that the defendant is not entitled to relief. United
States v. Ritter, 93 Fed.Appx. 402 (3d Cir. 2004).
Pro se pleadings, such as Defendant's, are to be
liberally construed. Higgs v. AG of the United
States, 655 F.3d 333, 339 (3d Cir. 2011). In this case,
a hearing is unnecessary, and the Motion will be disposed of
on the record.
threshold matter, the Government challenges the timeliness of
Defendant's Motion. Pertinent here, Section 2255 requires
that a habeas petition be filed within one year of the date
on which the judgment of conviction becomes final. 28 U.S.C.
§ 2255(f). Direct review becomes final, if a petition
for certiorari was filed, on the date that certiorari was
denied. Upsher v. Warden Burns, 2010 U.S. Dist.
LEXIS 137879, at *5 (W.D. Pa. Nov. 18, 2010). Here, the
Supreme Court denied certiorari on January 13, 2014.
Defendant filed the instant Motion on June 18, 2015, outside
of the one-year limitations period.
however, argues that the time limitation should be tolled. He
argues that he diligently worked to protect his rights, by
repeatedly requesting from counsel reimbursement of certain
funds, along with his legal file; he also requested that the
Court direct counsel to provide his file. The latest of his
these requests was made on December 16, 2014. On December 23,
2014, Defendant filed his Motion pursuant to Amendment 782,
which the Court granted. Subsequently, Defendant avers that
he received his legal file in February, 2015, which finally
allowed him to prepare and file the instant Motion.
tolling is only appropriate where "principles of equity
would make the rigid application of a limitation period
unfair." Miller v. New Jersey State Dep't of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (citation
omitted). Equitable tolling may be found when: (1) the
respondent has actively misled the petitioner; (2) the
petitioner has in some extraordinary way been prevented from
asserting his rights; or (3) the petitioner has timely
asserted his rights but in the wrong forum. United States
v. Boyd, 2009 U.S. Dist. LEXIS 4356, at **6-7 (W.D. Pa.
Jan. 20, 2009). To invoke equitable tolling, in addition to
showing "extraordinary circumstances" that
prevented a timely motion, a defendant must show that he
exercised reasonable diligence in investigating and bringing
his claims. Miller, 145 F.3d at 618-19. Thus,
excusable neglect is not sufficient. Id. Equitable
tolling is a remedy that should be invoked sparingly.
United States v. Midgley, 142 F.3d 174, 179 (3d Cir.
all of Defendant's factual averments as true, this case
does not present the type of situation in which tolling is
justified. Defendant does not contend that the Government
misled him in any way pertinent to the timing of his Motion;
nor does he contend that he timely asserted his rights in a
different forum. Defendant's inability to obtain his
legal file until February, 2015, was an extraordinary
circumstance that prevented him from asserting his rights in
this Court prior to the expiration of the limitations period.
“[A]n attorney's failure to ensure a defendant has
received his case files is a far cry from a ‘rare and
exceptional circumstance'” of the type that
justifies equitable tolling. Vera v. United States,
2013 U.S. Dist. LEXIS 144800, at *14 (N.D. Tex. Aug. 15,
lack of access to legal materials certainly can, in some
situations, justify tolling; moreover, my conclusion today
does not excuse an attorney's failure to transmit a
defendant's legal files when asked to do so. In this
case, however, tolling is not justified. Each ground of
ineffectiveness that Defendant asserts is based on his
personal knowledge, held long before he received his file.
The asserted grounds, in other words, are not reliant in any
way on Defendant's access to his file. Defendant does not
suggest how, under the circumstances, his lack of access
hindered his filing or preparation of the instant Motion, or
his access to the Court. Indeed, Defendant was able to file a
pro se Section 3582 dated December 23, 2014, which
was docketed on January 5, 2015, without access to his case
file and prior to the expiration of the Section 2255 time
period. There is no reason to believe that his habeas
arguments could not also have been raised during that time
frame. Further, the letters Defendant attaches to his Motion
indicate that he was well aware of applicable time
constraints: By letter dated May 14, 2014, he stated to
counsel, “At this time, the clock is running for me to
file a collateral attack and I require the files that you
possess [which I am entitled to] in order to evaluate and
possibly file a 28 USC § 2255.” “[T]here is
a difference between the time for discovering the factual
predicate of a claim (which may warrant equitable tolling)
and ‘the time permitted for gathering evidence in
support of that claim' (which will not warrant equitable
tolling).” Vera, 2013 U.S. Dist. LEXIS 144800,
at **14-15. Here, equitable tolling is not warranted.
Ineffective Assistance of Counsel
I were to consider the merits of Defendant's Motion, he
would not prevail. Defendant argues that his counsel was
ineffective for spending only three hours with him and thus
allowing for little or no input from Defendant. He also avers
that he was not advised of the implications of a plea
bargain, and was forced into a trial. Further, Defendant
avers that against his wishes, he did not ...