Kenneth Lamar Spratt v. United States of America

Filing 9

MINUTES OF IN CHAMBERS ORDER by Judge Michael W. Fitzgerald as to Defendant Kenneth Lamar Spratt: Before the Court is the government's Motion to Dismiss and Motion for Order to Show Cause (Docket No. 8 ). Petitioner's Response to that Moti on shall be due November 7, 2016. To be clear, the response must be received by the Court on that date, not simply postmarked by that date. The Court will then consider the Motion and Response on the papers and issue a decision in due course. IT IS SO ORDERED. (cw)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case Nos.CV 16-6311-MWF
Date: October 7, 2016
CR 11-859-MWF
Title:
Kenneth Lamar Spratt -v- United States of America
Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
Relief Deputy Clerk:
Cheryl Wynn

Court Reporter:
Not Reported

Attorneys Present for Plaintiff:
None Present

Attorneys Present for Defendant:
None Present

Proceedings (In Chambers): ORDER DIRECTING PETITIONER SPRATT TO
SHOW CAUSE WHY THE CASE SHOULD NOT
BE DISMISSED
Before the Court is the government’s Motion to Dismiss and Motion for Order
to Show Cause (the “Motion to Dismiss”) (Docket No. 8), filed in response to
Petitioner Kenneth Spratt filed a Motion to Vacate, Set Aside, and Correct Sentence
(“Section 2255 Motion”), requesting relief under 28 U.S.C. § 2255. (Docket No. 1).
The Section 2255 Motion was received by the Clerk on August 22, 2016.
(Docket No. 1). Upon receipt of the Section 2255 Motion, the Court set a briefing
schedule, requiring the government to submit its Opposition no later than September
16, 2016, and Petitioner to file his Reply brief no later than October 14, 2016. (Docket
No. 3). Per the government’s request, the Court subsequently granted an extension.
(Docket No. 7). The government’s Opposition would be due October 28, 2016, and
Petitioner’s Reply would be due November 21, 2016. (Id.).
On September 19, 2016, the government filed its Motion to Dismiss. (Docket
No. 8). The government contends that the Section 2255 Motion is untimely on its face.
(Id. at 1). Petitioner’s judgment of conviction became final on August 17, 2015; 90
days after the Ninth Circuit issued its memorandum disposition dismissing Petitioner’s
direct appeal. See Clay v. United States, 537 U.S. 522, 532 (2003) (holding a
conviction becomes final when the time for filing a petition for a writ of certiorari
expires); S. Ct. R. 13 (stating petition for a writ of certiorari must be filed within 90
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case Nos.CV 16-6311-MWF
Date: October 7, 2016
CR 11-859-MWF
Title:
Kenneth Lamar Spratt -v- United States of America
days of the entry of judgment); United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir.
2000) (holding, prior to Clay, that “the one-year limitations period for a federal
prisoner who does not file a petition for a writ of certiorari begins to run when the time
for filing the petition expires.”). Therefore, for Petitioner’s application to be timely, it
must have been filed by August 17, 2016.
Apparently, one version of the Section 2255 Motion was signed and postmarked
August 17, 2016. (Mot. to Dismiss at 2 n.1). This version was never sent to the Court,
however. A slightly different version — the version the Court received — was signed
and postmarked August 18, 2016. (Docket No. 1 at 39, 41).
“A pro se prisoner’s notice of appeal from the denial of a federal habeas petition
is filed ‘at the time . . . [it is] delivered . . . to the prison authorities for forwarding to
the court clerk.” Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014)
(quoting Houston v. Lack, 487 U.S. 266, 276 (1988)). This is known as the prison
mailbox rule. See id. If Petitioner were incarcerated at the time he filed his Section
2255 Motion, the prison mailbox rule would apply. See Rules Governing Section 2255
Proceedings for the United States District Courts, Rule 3(d).
However, the government contends that the mailbox rule does not apply to
Petitioner because he was not incarcerated at the time he mailed his habeas petition.
(Mot. to Dismiss at 4–5). Rather, Petitioner had been transferred to a halfway house
on May 18, 2016 and released to home confinement on June 28, 2016. (Declaration of
Sarah Quist (“Quist Decl.”) ¶ 3, Ex. A at 1). Because Petitioner was not incarcerated
in a prison facility, the government argues that he did not face the same barriers as
incarcerated prisoners: he “had the ability to ‘place the notice directly into the hands of
the United States Postal Service (or a private express carrier) . . . [and] follow its
progress by calling the court to determine whether the notice has been received and
stamped, knowing that if the mail goes awry they can personally deliver notice at the
last moment or that their monitoring will provide them with evidence to demonstrate
either excusable neglect or that the notice was not stamped on the date the court
received it.’” (Mot. to Dismiss at 4–5 (quoting Lack, 487 U.S. at 270–71).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case Nos.CV 16-6311-MWF
Date: October 7, 2016
CR 11-859-MWF
Title:
Kenneth Lamar Spratt -v- United States of America
The justification for the prison mailbox rule arguably applies in this case.
Unrepresented prisoners “cannot take the steps other litigants can take to monitor the
processing of their notices of appeal . . . before the . . . deadline.” Houston, 487 U.S. at
270–71. “Unlike represented litigants and litigants who are not incarcerated, pro se
prisoners have no control of their court filings after delivery to prison authorities: ‘No
matter how far in advance the pro se prisoner delivers his notice to the prison
authorities, he can never be sure that it will ultimately get stamped filed on time.’”
Hernandez, 764 F.3d at 1074 (emphasis in original) (quoting Houston, 487 U.S. at
271). Although an individual held under home confinement can be sure that the postal
service has no incentive to delay, cf. Houston, 487 U.S. at 271, that same individual
cannot physically place his or her 2255 Motion in the Clerk of Court’s hands, as can a
typical civil litigant, see id. at 271. “Other litigants may choose to entrust their appeals
to the vagaries of the mail and the clerk’s process for stamping incoming papers, but
only the pro se prisoner” — including a prisoner held in his or her own home — “is
forced to do so by his situation.” Houston, 487 U.S. at 271.
Nevertheless, the Court need not decide whether the mailbox rule applies to
Petitioner because the Section 2255 Motion received by the Court was postmarked and
dated August 18, 2016, and was therefore untimely in any case. Accordingly,
Petitioner is ORDERED to show cause why his Section 2255 Motion should not be
dismissed as untimely.
“A § 2255 movant is entitled to equitable tolling ‘only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.’” United States v. Buckles, 647 F.3d 883,
889 (9th Cir. 2011) (quoting Holland v. Florida, 560 U.S. 631, 648 (2010)).
Additionally, “[t]he movant must show that the extraordinary circumstances ‘were the
cause of his untimeliness.’” Id. (quoting Bryant v. Ariz. Att’y Gen., 499 F.3d 1056,
1061 (9th Cir. 2007)). In other words, to avoid dismissal, Petitioner must (1) describe
for the Court how he pursued his rights diligently; (2) explain to the Court why he sent
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case Nos.CV 16-6311-MWF
Date: October 7, 2016
CR 11-859-MWF
Title:
Kenneth Lamar Spratt -v- United States of America
his Motion out late and why that reason was an extraordinary circumstance; and (3)
make sure it is clear how the extraordinary reason caused the delay.
Petitioner’s Response shall be due November 7, 2016. To be clear, the response
must be received by the Court on that date, not simply postmarked by that date. The
Court will then consider the Motion and Response on the papers and issue a decision in
due course.
IT IS SO ORDERED.

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CIVIL MINUTES—GENERAL
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