Von Schultz v. United States of America
ORDER by the Honorable Alan B Johnson dismissing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255), filed by Albert Wilhelm Von Schultz. Copy of order mailed to petitioner on this date. (Court Staff, sjs) (Court Staff, sth)
U.S. 0'~; · · . ~-,-COURT
DIST"~iCT OF WYOMING
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
STEPHAN HARRIS, CLERK
ALBERT WILHELM VON SCHULTZ,
Case No. 12-CV-255-ABJ
(Criminal No. 06-CR-231-ABJ-1)
UNITED STATES OF AMERICA,
OPINION AND ORDER DISMISSING PETITIONER'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
Petitioner Albert Wilhem Von Schultz pleaded guilty to one count of conspiracy to
manufacture and possess with intent to distribute, and to distribute, marijuana. He also pleaded
guilty to one count of possessing a firearm in furtherance of a drug trafficking crime. Now, more
than five years after his conviction became final, Von Schultz has moved this Court to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255 on the ground that he was deprived of his
Sixth Amendment right to the effective assistance of counsel. The Government argues that the
Court should dismiss Von Schultz's motion as untimely under § 2255's one-year limitation
period. The Court agrees and DISMISSES Von Schultz's motion as time-barred.
Petitioner Albert Wilhelm Von Schultz (a.k.a. Robert Culver Hinz) pleaded guilty to one
count of conspiracy to manufacture and possess with intent to distribute, and to distribute,
marijuana in violation of 21 U.S.C. § 846, and§ 841(a)(1) and (b)(1)(B). He also pleaded guilty
to possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(l)(A). The trial court accepted Von Schultz's guilty plea, sentenced him to 120 months in
prison, and entered its judgment on March 19, 2007. Von Schultz did not file an appeal.
Von Schultz alleges that the reason he didn't file an appeal is because defense counsel
said he would file one but never did. Two years after Von Schultz's conviction, he wrote to
defense counsel asking about the status of his appeal and received a response informing him that
defense counsel had died and had not filed an appeal. At some later date, Von Schultz began
thinking that the Government didn't have enough evidence to support the possession of a firearm
in furtherance of a drug trafficking crime charge, and that defense counsel had rendered
constitutionally defective assistance by advising Von Schultz to plead guilty to that charge. Von
Schultz then allegedly consulted with a paralegal who erroneously advised him that he had to
exhaust all administrative remedies before filing a § 2255 motion. Von Schultz initiated the
exhaustion process in May 2011 and the process concluded in April 2012.
On November 8, 2012, Von Schultz mailed this Court his motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. He argues that defense counsel rendered
constitutionally defective assistance in two ways. First, defense counsel advised Von Schultz to
plead guilty to possessing a firearm in furtherance of a drug trafficking crime even though Von
Schultz maintains he's innocent of that charge. Second, defense counsel failed to adequately
investigate Von Schultz's case.
Von Schultz recognizes he has a timeliness problem given he filed his motion more than
five years after his conviction became final, but he offers two solutions. First, he argues that §
2255's one-year limitation period didn't start running on his motion until March 21, 2012, when
the Supreme Court announced its decisions in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and
Missouri v. Frye, 132 S. Ct. 1399 (2012). According to Von Schultz, these decisions recognized
a new right-the right to effective assistance of counsel during plea bargaining-and this new
right applies retroactively to cases like his on collateral review. And, because Von Schultz filed
his § 2255 motion within one year of Lafler and Frye, he contends that his motion is timely
under § 2255(f)(3). Von Schultz's second solution to the timeliness problem is that even if his
motion is untimely the Court should excuse his untimeliness based on the equitable tolling
doctrine. The Government contends that none of Von Schultz's arguments has merit and urges
the Court to dismiss his motion as untimely.
The first issue here is whether§ 2255's one-year limitation period started running on Von
Schultz's motion when his conviction became final or when the Supreme Court decided Lafler v.
Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), which the Court
handed down on March 21, 2012. The second issue is whether Von Schultz's motion is timely
and, if not, whether he is entitled to equitable tolling. After discussing these issues, the Court will
When the Clock Started Ticking
The Court starts with this question: When did the clock start ticking on Von Schultz's §
2255 motion-when his conviction became final or when the Supreme Court decided Lafler and
Frye? Von Schultz argues the latter. The Court concludes the former.
Section 2255(f)(3) provides that the one-year limitation period for filing a § 2255 motion
doesn't start running until "the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). Von Schultz
argues that the Supreme Court recognized a new right in Lafler and Frye-the right to effective
assistance of counsel in the plea bargaining process-and that this new right applies retroactively
to cases like his on collateral review. Thus, according to Von Schultz, his motion is timely under
§ 2255(f)(3) because he filed it within one year of Lafler and Frye.
The Court disagrees that § 2255(f)(3) governs Von Schultz's motion. The Tenth Circuit
has held that neither Lafler nor Frye recognized a new right for purposes of§ 2255(f)(3). United
States v. Lawton, No. 12-3240, 2012 WL 6604576, at *3 (lOth Cir. Dec. 19, 2012)
(unpublished). That holding is consistent with precedent from other federal courts of appeals.
See Williams v. United States, 705 F.3d 293, 294 (8th Cir. 2013) (holding that neither Lafler nor Frye announced a
new rule of constitutional law); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012) (same); In re King,
697 F.3d 1189, 1189 (5th Cir. 2012) (same); Hare v. United States, 688 F.3d 878, 881 (7th Cir. 2012) (same); In re
Perez, 682 F.3d 930, 932 (11th Cir. 2012) (same).
Thus, because neither Lafler nor Frye announced a new right within the meaning of§ 2255(f)(3),
that provision does not govern the timeliness of Von Schultz's motion-§ 2255(f)(1) does. The
clock started ticking when Von Schultz's conviction became final.
Timeliness and Equitable Tolling
Having concluded that § 2255's one-year limitation period started running on Von
Schultz's motion when his conviction became final, the Court next addresses whether his motion
is timely and, if not, whether equitable tolling can save his motion. The Court concludes that the
answer to both of those questions is no.
Von Schultz's motion is untimely because he filed it more than one year after his
conviction became final. See 28 U.S.C. 2255(£)(1). The trial court entered its judgment on March
19, 2007, and Von Schultz did not appeal. His conviction thus became final on March 29, 2007.
See United States v. Prows, 448 F.3d 1223, 1227-28 (lOth Cir. 2006) ("If the defendant does not
file an appeal, the criminal conviction becomes final upon the expiration of the time in which to
take a direct criminal appeal."); Fed. R. App. P. 4(b)(1)(A) (2007) (providing criminal
defendants ten days to file notice of appeal). Von Schultz had until March 29, 2008, to file his
motion but didn't do so until November 8, 2012. Thus, his motion is over four years late.
Von Schultz doesn't deny that his motion is untimely under § 2255(f)(l), but instead
argues that the Court should treat his motion as timely under the equitable tolling doctrine. In
support of equitable tolling, Von Schultz argues that three extraordinary circumstances stood in
his way of filing on time: (1) Defense counsel said he would file a notice of appeal but never did,
(2) defense counsel died, and (3) a paralegal erroneously told Von Schultz that he had to exhaust
administrative remedies before filing a§ 2255 motion. On the merits, Von Schultz contends that
defense counsel rendered constitutionally defective assistance by advising Von Schultz to plead
guilty to possessing a firearm in furtherance of a drug trafficking crime. This was
constitutionally defective advice, according to Von Schultz, because he is actually innocent of
that charge. Because the Court liberally construes Von Schultz's pro se motion, the Court casts
this argument as one for equitable tolling on the ground of actual innocence. See United States v.
Viera, 674 F.3d 1214, 1216 n.l (lOth Cir. 2012)
Von Schultz is correct that equitable tolling can extend the time for filing a § 2255
motion beyond the one-year limitation period. See United States v. Johnson, 447 F. App'x 918,
919 (lOth Cir. 2012) (unpublished). But equitable tolling applies only ifthe petitioner shows (1)
that he has diligently pursued his rights, and (2) that some extraordinary circumstance stood in
his way of filing on time. See Yang v. Archuleta, 525 F.3d 925, 928 (1Oth Cir. 2008). Regarding
diligence, a petitioner "must allege with specificity the steps he took" to diligently pursue his
claims. Id at 930 (internal quotation marks omitted). And while no exhaustive list of
extraordinary circumstances exists, the Tenth Circuit has provided some examples, such as actual
innocence claims, uncontrollable circumstances preventing timely filing, or a timely filing that is
otherwise defective in some way. See Gibson v. Klinger, 232 F.3d 799, 808 (lOth Cir. 2000).
Although courts have the power to equitably toll § 2255's one-year limitation period,
equitable tolling is very much the exception rather than the rule. "An inmate bears a strong
burden to show specific facts to support his claim of extraordinary circumstances and due
diligence." Yang, 525 F.3d at 928. Equitable tolling is a "rare remedy" that applies only in
"unusual circumstances." ld at 929. In short, equitable tolling is "to be applied sparingly." Id
The Court rejects Von Schultz's equitable tolling argument because he has failed to
demonstrate diligence. He states that he dutifully and diligently pursued his claims. See Pet'r
Mot. 9, ECF No. 1; Pet'r Mem. 2, 5, ECF No. 2. But these conclusory statements are not
sufficient to establish diligence. See Yang, 525 F.3d at 930 ("[Petitioner's] conclusory statement
that he 'diligently pursued his rights and remedies' will not suffice."). Further, Von Schultz has
not stated what actions he took to diligently pursue his rights. See id (petitioner must allege with
specificity "the steps he took to diligently pursue his federal claims").
The record further belies Von Schultz's contention that he diligently pursued his rights.
He admits that he didn't even inquire about the status of his appeal until two years after his
conviction. Pet'r Mem. 6, ECF No. 2. That Von Schultz waited over five years from the date his
conviction became final to file his § 2255 motion itself demonstrates a lack of diligence. See
Loving v. Mahaffey, 27 F. App'x 925, 926 (lOth Cir. 2001) (unpublished) (holding petitioner not
entitled to equitable tolling where petitioner waited almost five years from date of conviction to
file federal habeas petition); Hicks v. Kaiser, No. 99--6302, 2000 WL 27694, at *2 (lOth Cir. Jan.
14, 2000) (unpublished) ("That Hicks' first challenge to his conviction came more than two
years after it became final demonstrates a lack of diligence .... "). And even if Von Schultz's
exhaustion of administrative remedies evidenced some amount of diligence, he didn't initiate
that process until four years after his conviction had become final and waited another seven
months to file his § 2255 motion once the exhaustion process had ended. See Pet'r Mem. 3 n.2,
ECF No. 2. Von Schultz has thus failed to demonstrate diligence and is not entitled to equitable
The Court also rejects Von Schultz's argument that his untimeliness should be excused
on the ground of actual innocence. "To establish a credible claim of actual innocence, a
petitioner must support his claim with new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not
presented at trial . . . . " United States v. Williams, 480 F. App'x 503, 505 (lOth Cir. 2012)
(unpublished) (internal quotation marks omitted). The petitioner also must show "that it is more
likely than not that no reasonable juror would have convicted him in the light of the new
evidence." !d. Here, Von Schultz does not offer any newly discovered evidence, much less
evidence sufficient to justify excusing his untimeliness on the ground of actual innocence. He
merely argues that there was insufficient evidence to support the charge of possessing a firearm
in furtherance of a drug trafficking crime. See Pet'r Mem. 9-13, ECF No.2. The Court therefore
rejects Von Schultz's claim that his untimeliness should be excused based on actual innocence.
Section 2255 provides that a district court should hold a hearing on a § 2255 motion
"[u]nless the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief." 28 U.S.C. § 2255(b). The Court concludes that Von Schultz's motion and
the record and files of this case conclusively show that he's not entitled to relief. The Court
therefore denies Von Schultz an evidentiary hearing. See United States v. Marr, 856 F.2d 1471,
1472 (lOth Cir. 1988) (holding that no evidentiary hearing is required if the district court finds
that the case record conclusively shows that the petitioner is not entitled to relief).
Certificate of Appealability
The rules governing § 2255 proceedings state, "[t]he district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a) of the
Rules Governing Section 2255 Proceedings. Section 2255 provides that "[a] certificate of
appealabililty may issue ... only if the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing in a case like this where
the court has disposed of a§ 2255 motion on procedural grounds, the petitioner must show (1)
"that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right," and (2) "that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484
(2000). Because reasonable jurists could not debate the correctness of the Court's procedural
ruling, the Court denies petitioner a certificate of appealability.
The Court rejects Von Schultz's argument that§ 2255's one-year limitation period started
running on his § 2255 motion when the Supreme Court decided Lafler and Frye because neither
case recognized a new right within the meaning of28 U.S.C. § 2255(f)(3). Von Schultz's motion
is time-barred because he failed to file it within one year of his conviction becoming final and he
is not entitled to equitable tolling. The Court therefore DISMISSES Von Schultz's § 2255
motion (ECF No. 1), DENIES an evidentiary hearing, and DENIES a certificate of
? ~day of March, 2013.
Alan B. Johnson
United States District Judge