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United States v. Jones

United States District Court, M.D. Pennsylvania

December 15, 2017

UNITED STATES OF AMERICA
v.
RAYMOND JONES, Defendant

          MEMORANDUM

          William W. Caldwell United States District Judge

         I. Introduction

         Currently before the court is Defendant Raymond Jones's (“Defendant”) pro se “expedited” motion (Doc. 193) for relief from judgment under Federal Rule of Civil Procedure 60(b)(6). In the motion, Defendant seeks relief from our October 22, 2014 order (Doc. 159), in which we denied his motion (Doc. 152) to vacate his sentence under 28 U.S.C. § 2255. For the reasons that follow, we will deny the instant motion.

         II. Factual Background and Procedural History

         On April 20, 2011, a jury convicted Defendant of drug-related crimes, (Doc. 107), and, on September 20, 2011, he was sentenced to 262 months imprisonment. (Doc. 129 at 3). On September 29, 2011, Defendant, through counsel, filed a notice of appeal. (Doc. 131). On November 1, 2012, the Third Circuit affirmed his convictions and sentence, (Doc. 147), and on November 23, 2012, the court issued its mandate. (Doc. 148).

         Defendant alleges that on November 19, 2012, while incarcerated at FCI-Loretto, he received an envelope from direct-appeal counsel, Joshua M. Autry (“Attorney Autry”), of the law firm Boyle, Autry & Murphy. (Doc. 193 at 4). This envelope, postmarked November 13, 2012, contained a copy of the Third Circuit's November 1, 2012 order affirming Defendant's conviction as well as a letter in which Attorney Autry expressed as follows:

At this time, I do not believe there is any further viable avenue of review for your case. Your case does not meet the criteria for reconsideration for the Third Circuit En Banc. In addition, I do not believe this is a case in which the Supreme Court would grant a Petition for Writ of Certiori [sic]. The choice to file a Petition for Writ of Certiorari is yours.

(Doc. 193-1 at 3). In the letter, Attorney Autry additionally stated to Defendant, “You also have the right to file a petition for collateral relief under 28 U.S.C. §2255, which must be filed within one (1) year of the last decision rendered in your case. Should you have any questions or concerns, please do not hesitate to contact me.” (Id. at 3-4). By the time Defendant received the letter and order on November 19, 2012, the deadline for filing a motion for a rehearing had passed pursuant to Federal Rule of Appellate Procedure 40(a)(1) which provides that “[u]nless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment.”

         After receiving the letter, Defendant contacted Attorney Autry and expressed to him that he wished to file a petition for rehearing. (Doc. 193 at 4). On December 3, 2012, Attorney Autry, on Defendant's behalf, filed with the Third Circuit a “motion for leave to file petition for panel rehearing nunc pro tunc.” (Doc. 193-1 at 7-9). In the motion, Attorney Autry asserted that “[b]ecause [Defendant] is incarcerated at FCI Loretto, [Defendant] was unable to confer with his attorney until after the fourteen day deadline for filing a Petition for Rehearing.” (Id. at 8). On the same date, Attorney Autry sent a copy of the motion to Defendant, along with a letter informing Defendant that the motion had been filed and informing Defendant to contact him if he had any questions or concerns. (Id. at 5). Additionally, on December 7, 2012, Attorney Autry, on Defendant's behalf, filed a motion to recall the Third Circuit's November 23, 2012 mandate. On September 11, 2013, the Third Circuit denied both motions. See United States v. Jones, No. 11-3693 (3d Cir. Sept. 11, 2013). On September 16, 2013, Dennis E. Boyle (“Attorney Boyle), of Boyle Litigation, [1] sent Defendant a copy of the Third Circuit's September 11, 2013 order denying his motions for a rehearing and to recall the mandate, as well as a letter in which Attorney Boyle stated to Defendant, “At this point, there is nothing further that we can do for you. I wish you all the best in the future.” (Doc. 193-1 at 11).

         On September 3, 2014, nearly one year after the Third Circuit denied his motion for rehearing and motion to recall the mandate, Defendant filed a pro se motion (Doc. 152) to vacate his sentence under 28 U.S.C. § 2255. In response thereto, the Government moved to dismiss Defendant's motion as untimely. (Doc. 157). Having considered the procedural history of the underlying criminal matter, in addition to the parties' respective arguments, we granted the Government's motion, and dismissed Defendant § 2255 motion as untimely. (See Doc. 159). Specifically, we found that because Defendant's motion for a rehearing was untimely and was ultimately denied by the Third Circuit, the ninety-day clock for filing a petition for certiorari was not stopped by the filing of the motion for a rehearing, [2] and his conviction became final on January 30, 2013-ninety days after the Third Circuit denied his appeal. (Id. at 2). Thus, he should have filed his § 2255 motion on or before January 30, 2014, but he failed to do so. (Id.)

         On November 18, 2014, Defendant filed a motion (Doc. 160) for reconsideration of his § 2255 motion. Defendant argued that we committed clear error in that his 90-day window to file a petition for certiorari did not close until December 10, 2013-that is, 90 days after the Third Circuit denied his motions for rehearing and to recall the mandate. (Id. at 2-4). We disagreed with Defendant, and denied his motion for reconsideration. (Doc. 161 at 2). On March 19, 2015, Defendant filed a notice of appeal (Doc. 166) and, eventually, a motion (Doc. 169) for a certificate of appealability. In denying Defendant's application for a certificate of appealability, the Third Circuit affirmed. (See Doc. 173). We are unaware of any evidence to suggest that Defendant subsequently filed, or sought to file, a petition for certiorari following the Third Circuit's ruling.

         Defendant then attempted to challenge the dismissal of his § 2255 motion by filing a motion (Doc. 174) under Federal Rule of Civil Procedure 60(b)(6), and subsequently a motion (Doc. 176) under Rule 59(e). In those motions, both of which we denied, Defendant raised essentially the same timeliness argument that he raised previously in his motion for reconsideration. Defendant appealed our denial of both his 60(b)(6) and 59(e) motions, and on October 24, 2016, the Third Circuit affirmed our denial of said motions. (Doc. 184).

         Defendant has now filed another motion (Doc. 193) under Federal Rule of Civil Procedure 60(b)(6), seeking relief from the dismissal of his § 2255 motion. This time, Defendant argues that his failure to file his § 2255 motion in a timely manner was caused by various misgivings of his direct-appeal counsel and that these misgivings amount to extraordinary circumstances that justify reopening his untimely § 2255 petition. First, Defendant takes issue with the fact that Attorney Autry waited until November 13, 2012 to mail him the Third Circuit's November 1, 2012 order affirming his conviction. Defendant alleges that, as a result, he did not receive that order until November 19, 2012, which was four days after the November 15, 2012 deadline for filing a petition for rehearing. Defendant also contends that Attorney Autry failed to inform him that the filing of an untimely motion for rehearing did not stop the clock on the 90 day window for seeking certiorari from the Supreme Court, or that that the statute of limitations for filing a § 2255 motion began to run in January 2013. Moreover, Defendant avers that after Attorney Autry filed his motion for rehearing and motion to recall the mandate, he deserted him by leaving his law firm without notice and without providing substitute counsel for Defendant. Finally, Defendant complains that after the Third Circuit's September 11, 2013 denial of his motions for rehearing out of time and to recall the mandate, Attorney Boyle sent him a copy of the denial order, but failed to inform him that his deadline for seeking certiorari had expired or that the one-year statute of limitations for filing a § 2255 petition had already began running.

         Defendant asserts that the alleged misgivings of Attorney Autry and Attorney Boyle led him believe that his judgment of sentence did not become final until September II, 2013 when the Third Circuit denied his untimely motion for reconsideration; consequently, Defendant believed that he had until December 10, 2013 to seek ...


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