Nestor v. United States of America
Filing
12
ORDER deferring 6 --motion to dismiss; denying 11 --motion for hearing; staying the action and administratively closing the case. No later than 05/08/2017 the United States must respond on the merits of the motion to vacate. No later than 06/12/2017 (or thirty days after the United States responds to this order, whichever occurs later), Nestor may reply on the merits of his motion to vacate. Signed by Judge Steven D. Merryday on 3/31/2017. (SKB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
CASE NO. 8:01-cr-269-T-23AAS
8:13-cv-1701-T-23AAS
RUSSELL JOHN NESTOR
/
ORDER
Nestor moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges the
validity of both his controlled-substance convictions and his sentence of 420 months.
A jury convicted Nestor (1) of conspiring to distribute, and to possess with the intent
to distribute, mixtures containing gamma-butyrolactone (GBL), a controlled
substance analogue of gamma-hydroxybutyric acid (GHB), (2) of distributing GBL
that resulted in death, and (3) of possessing GBL with the intent to distribute.1 The
Eleventh Circuit affirmed the convictions and the sentence. (Doc. 172 in 01-cr-269)
Nestor admits his motion’s untimeliness but asserts entitlement to equitable
tolling based on attorney abandonment. The United States moves to dismiss the
motion as untimely and contests Nestor’s entitlement to equitable tolling. (Doc. 6)
Nestor moves for a hearing. (Doc. 11) A careful review of the present record shows
1
GBL is commonly known as a “date rape drug.” Count One of the First Superceding
Indictment charged Nestor with possessing “9.8 gallons of a product containing GBL” in
furtherance of the conspiracy. (Doc. 37 at 5 in 01-cr-269)
that Nestor proves entitlement to equitable tolling based on attorney abandonment.
The record is otherwise insufficient to determine whether Nestor overcomes the time
bar.
The Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2255(f)(1),
states, “A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of . . . the date on which the judgment of
conviction becomes final . . . .” The May 3, 2004, denial of certiorari began Nestor’s
one-year, which concluded on May 3, 2005. Nestor moved to vacate on July 1,
2013, eight years beyond the limitation established under Section 2255(f)(1). Nestor
asserts entitlement to a review on the merits based only on the judicially created
“equitable tolling” exception to the limitation and not under any other provision in
Section 2255(f).2
EQUITABLE TOLLING
Holland v. Florida, 560 U.S. 631, 645 (2010), holds that equitable tolling is
sometimes available. Nestor bears the burden of proving entitlement to equitable
tolling. Jones v. United States, 304 F.3d 1035, 1040 (11th Cir. 2002), cert. denied, 538
U.S. 947 (2003). To qualify for equitable tolling Nestor must prove both
“extraordinary circumstances” that were beyond his control and “due diligence.”
Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (“Equitable tolling is
2
Neither party has addressed Nestor’s possible entitlement to a limitation under Section
2255(f)(4), which affords a one-year limitation from “the date on which the facts supporting the
claim or claims presented could have been discovered through the exercise of due diligence.”
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appropriate when a movant untimely files because of extraordinary circumstances
that are both beyond his control and unavoidable even with diligence.”) See cases
collected in Harper v. Ercole, 648 F.3d 132, 137 (2nd Cir. 2011) (“To secure equitable
tolling, it is not enough for a party to show that he experienced extraordinary
circumstances. He must further demonstrate that those circumstances caused him to
miss the original filing deadline.”). Nestor shows both extraordinary circumstances
and due diligence.
Extraordinary Circumstances:
Nestor contends that his retained attorney abandoned him. As Maples v.
Thomas, 132 S. Ct. 912, 924 (2012), explains, “abandonment” qualifies as an
“extraordinary circumstance”:
We agree that, under agency principles, a client cannot be
charged with the acts or omissions of an attorney who has
abandoned him. Nor can a client be faulted for failing to act on
his own behalf when he lacks reason to believe his attorneys of
record, in fact, are not representing him. We therefore inquire
whether Maples has shown that his attorneys of record
abandoned him, thereby supplying the “extraordinary
circumstances beyond his control,” necessary to lift the state
procedural bar to his federal petition.
David Jonathan Joffe was appointed to represent Nestor on direct appeal.
While the appeal was pending, Nestor’s father hired investigators and began
discussing with Joffe the possibility of retaining Joffe’s services for post-conviction
relief. (Attachment B, Doc. 9-1) The appeal concluded with the denial of certiorari
on May 3, 2004 (Doc. 180), which is when Nestor’s one-year limitation began.
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A little more than six months after the limitation began, Nestor’s father sent to
Joffe both results from the investigation and half of the agreed $20,000 retainer.
(Attachment A, Doc. 9-1) An additional $5,000 was paid in February, 2005, and the
final installment was paid a few weeks later in March. (Affidavit, ¶11, Doc. 90-1)
The limitation was May 3, 2005, less than two months away. For the next four
years Nestor’s father attempted — but with limited success — to communicate with
Joffe. When contacted by Nestor’s father, Joffe claimed that he was working on the
case. (Attachments C–F, Doc. 90-1) In October, 2010, Nester’s father discharged
Joffe (Attachment G, Doc. 90-1), and two months later he filed with The Florida Bar
a formal complaint against Joffe. (Affidavit, ¶22, Doc. 90-1) On July 31, 2012, the
Supreme Court publicly reprimanded Joffe and ordered the return to Nestor of the
$20,000 fee. This concluded both Joffe’s involvement and the asserted basis for
equitable tolling.3
Nestor argues that Joffe’s misrepresentation and inaction establish
abandonment. Whether an attorney’s inaction constitutes abandonment is
necessarily dependent upon the facts under review. Downs v. McNeil, 520 F.3d 1311
(11th Cir. 2008), explains:
During the course of representation, counsel’s alleged behavior
ran the gamut from acts of mere negligence to acts of gross
negligence to acts of outright willful deceit. In considering
whether the conduct of counsel was extraordinary, we will not
dissect the continuing course of conduct in which counsel
3
While Nestor’s complaint against Joffe was pending, Nestor “met with and agreed to
retain the services of” Nestor’s present counsel, but Nestor was unable to “fully pay” the attorney’s
fee until the recovery of the retainer paid to Joffe.
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engaged, but rather view counsel’s behavior as a whole.
Consequently, although the culminating event which rendered
Downs’ federal habeas petition untimely was counsel’s late
filing of the petition, that ordinary act of negligence cannot be
isolated from counsel’s allegedly egregious misconduct.
Holland, 560 U.S. at 651, cites cases in which the “lower courts have
specifically held that unprofessional attorney conduct may, in certain circumstances,
prove ‘egregious’ and can be ‘extraordinary’. . . .” Nestor emphasizes three of the
cases Holland cites, specifically, Baldayaque v. United States, 338 F.3d 145 (2nd Cir.
2003), Spitsym v. Moore, 345 F.3d 796 (9th Cir. 2003), and United States v. Martin,
408 F.3d 1089 (8th Cir. 2005). Each case, including Holland, features egregious
attorney misconduct both prejudicial to the client and similar to Joffe’s
misrepresentation and inaction. In sum, Nestor proves abandonment that meets the
“extraordinary circumstance” requirement for entitlement to equitable tolling.
However, as discussed above, equitable tolling requires proof of both “extraordinary
circumstances” and “due diligence.”
Due Diligence:
“The diligence required for equitable tolling purposes is ‘reasonable diligence,’
not ‘maximum feasible diligence.’” Holland, 560 U.S. at 653 (citations omitted).
Through the assistance of his father, Nestor persisted in urging Joffe to challenge
Nestor’s conviction and sentence. The details of this persistence are disclosed more
fully in the father’s affidavit. (Attachment 1, Doc. 9-1) As stated in Downs, 520 F.3d
at 1323 (quoting Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002)) (ellipsis
original), “Due diligence . . . does not require a prisoner to undertake repeated
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exercises in futility or to exhaust every imaginable option, but rather to make
reasonable efforts. Moreover, the due diligence inquiry is an individualized one
that must take into account the conditions of confinement and the reality of the
prison system.” The affidavit shows that “due diligence” was exercised for equitable
tolling.
As a consequence, Nestor proves entitlement to equitable tolling based on his
former counsel’s abandonment. However, the present state of the record is
insufficient to determine whether Nestor is relieved from the one-year bar.
Actual Innocence Exception to the Limitation:
Proof of actual innocence acts as a “gateway” through which a defendant may
pass to assert an otherwise time-barred or procedurally barred federal claim. Passage
through the gateway is difficult to obtain because “[t]o be credible, such a claim
requires petitioner to support his allegations of constitutional error with new reliable
evidence — whether . . . exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence — that was not presented at trial.” Schlup v.
Delo, 513 U.S. 298, 324 (1995). The gateway is narrow and opens “only when a
petition presents ‘evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that the trial
was free of nonharmless constitutional error.’” McQuiggin, Warden, v. Perkins,
133 S. Ct. 1924, 1936 (2013) (quoting Schlup v. Delo 513 U.S. 298, 316 (1995)).
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“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998). House v. Bell, 547 U.S. 518, 538
(2006) (internal citation omitted), explains that the applicant’s burden, although
demanding, is not absolute proof of innocence:
[I]t bears repeating that the Schlup standard is demanding and
permits review only in the “extraordinary” case . . . . At the
same time, though, the Schlup standard does not require
absolute certainty about the petitioner’s guilt or innocence. A
petitioner’s burden at the gateway stage is to demonstrate that
more likely than not, in light of the new evidence, no reasonable
juror would find him guilty beyond a reasonable doubt — or, to
remove the double negative, that more likely than not any
reasonable juror would have reasonable doubt.
Nestor provides an affidavit from an individual who was present inside the
apartment when the drug was allegedly delivered to the victim. The affiant attests
that “at no time did Russell Nestor give [the victim] anything to eat or drink.”
(Doc. 9-2 at 3) Nestor’s entitlement to a review on the merits warrants further
development because the motion to vacate alleges substantial claims of ineffective
assistance of counsel, particularly counsel’s failure to investigate and present the
testimony of the affiant.
The pending motion to dismiss is limited to the timeliness of the motion to
vacate. Nestor’s evidence of actual innocence is so intertwined with the grounds in
the motion to vacate that the parties must address the merits. The United States
challenges the credibility of the affiant. Determining credibility under the pending
motion to dismiss is premature. See House v. Bell, 547 U.S. at 537 (acknowledging
that at an evidentiary hearing a district court may “consider how the timing of the
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submission and the likely credibility of the affiants bear on the probable reliability of
that evidence”) (quoting Schlup, 513 U.S. at 331–32). In determining Nestor’s
grounds, the district “court must consider ‘all the evidence,’ old and new,
incriminating and exculpatory, without regard to whether it would necessarily be
admitted under ‘rules of admissibility that would govern at trial.’” House, 547 U.S. at
538 (quoting Schlup, 513 U.S. at 327–28).
Although Nestor’s father retained both trial and post-conviction counsel,
Nestor was appointed appellate counsel under the Criminal Justice Act. (Doc. 148 in
01-cr-269) As a consequence, Nester is entitled to appointed counsel for the
remainder of this action.
Accordingly, the United States’ motion to dismiss (Doc. 6) is DEFERRED.
Nestor’s motion for a hearing (Doc. 11) is DENIED. Nestor’s present counsel is
appointed under the Criminal Justice Act. This action is STAYED AND
ADMINISTRATIVELY CLOSED. On or before MONDAY, MAY 8, 2017, the
United States must respond on the merits of the motion to vacate. On or before
MONDAY, JUNE 12, 2017 (or thirty days after the United States responds to this
order, whichever occurs later), Nestor may reply on the merits of his motion to
vacate. The clerk will re-open this action after the parties have briefed the merits.
ORDERED in Tampa, Florida, on March 31, 2017.
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