Lee v. USA

Filing 4

ORDER DISMISSING DEFENDANT LINDA LEE'S MOTION UNDER 28 U.S.C. § 2255 AS UNTIMELY AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITYre 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/28/2015. (emt, )CERTIF ICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Linda Lee shall be served by first class mail at the address of record on July 29, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
)
LINDA LEE;
)
)
Defendant.
)
_____________________________ )

Cr. No. 09-00404 SOM
Civ. No. 15-00117 SOM/BMK
ORDER DISMISSING DEFENDANT
LINDA LEE’S MOTION UNDER 28
U.S.C. § 2255 AS UNTIMELY AND
DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

ORDER DISMISSING DEFENDANT LINDA LEE’s
MOTION UNDER 28 U.S.C. § 2255 AS UNTIMELY AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I.

INTRODUCTION.
On July 5, 2012, judgment was entered in a criminal

case against Defendant Linda Lee.

See ECF No. 112.1

Lee was

convicted of drug-related crimes and sentenced to two concurrent
160-month terms of imprisonment, a $200 special assessment, and
two concurrent five-year terms of supervised release.

Id.

On April 7, 2015, Lee filed a Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in
Federal Custody.

See ECF No. 117.

Before considering the merits of Defendant Linda Lee’s
28 U.S.C. § 2255 Motion, this court must determine whether the
Motion was timely filed.

1

See 28 U.S.C. § 2255(f).

Accordingly,

All citations herein to the record will be to United
States v. Linda Lee, Cr. No. 09-00404 SOM.

on April 9, 2015, the court issued an Order To Show Cause,
directing Lee to explain how the circumstances satisfy at least
one subpart of 28 U.S.C. § 2255(f) such that her Motion was
timely and/or whether she is entitled to equitable tolling of the
one-year limitation period.

See ECF No. 118.

On May 8, 2015, Lee timely filed a response to the
Order To Show Cause.

See ECF No. 119.

Government filed its response.
2015, Lee filed a reply.

On May 18, 2015, the

See ECF No. 123.

See ECF No. 124.

On June 29,

The court now

determines that Lee’s § 2255 Motion is untimely and dismisses it.
The court declines to issue a certificate of appealability.
II.

BACKGROUND.
Lee pled guilty pursuant to a plea agreement to two

counts of aiding and abetting the possession with intent to
distribute and distribution of 50 grams or more of
methamphetamine.

See ECF No. 90.

Pursuant to the plea

agreement, Lee knowingly and voluntarily waived the right to
appeal her conviction and any sentence within the maximum
sentence provided for by statute:
The Defendant is aware that she has the right
to appeal the sentence imposed under Title
18, United States Code, Section 3742(a).
However, in exchange for concessions made by
the prosecution in this Agreement, Defendant
knowingly and voluntarily waives the right to
appeal her conviction and any sentence within
the maximum provided in the statute of
conviction or the manner in which that
sentence was determined on any grounds
2

whatsoever, including any order of
restitution, and the manner in which that
sentence was determined.
Id., PageID #s 198-99.

In exchange for Lee’s agreement to plead

guilty to Counts 1 and 2, the Government agreed to several
things, including not seeking a superseding indictment that would
have included a cocaine distribution charge and withdrawing a
Special Information filed pursuant to 21 U.S.C. § 851.
PageID #s 193-94; see also ECF No. 89.

See id.,

Lee waived her right to

collaterally attack her sentence, except with respect to claims
of ineffective assistance of counsel.2

Id., PageID # 199.

Lee was sentenced to two concurrent 160-month terms of
imprisonment, a $200 special assessment, and two concurrent fiveyear terms of supervised release.
entered on July 5, 2012.

See ECF No. 112.

See ECF No. 112.

her conviction or sentence.

Judgment was

Lee did not appeal

See ECF No. 117, PageID #s 467-68.

On April 7, 2015, Lee filed her Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in
Federal Custody.

See ECF No. 117.

Ground One of the § 2255 Motion contends that her
counsel was ineffective at the pretrial stage in 1) failing to
discuss a pretrial defense strategy, 2) failing to develop a

2

Although the Presentence Investigation Report refers to a
plea agreement provision preserving Lee’s right to appeal or
collaterally attack an above-guideline sentence, the actual plea
agreement does not include such a right. This discrepancy is
irrelevant here, as an above-guideline sentence was not imposed.
3

defense, 3) failing to inform Lee that she “had been served with
a § 851 enhancement, and 4) lying to Lee “about Judge’s dismissal
on the violation of speedy trial.”

Id., PageID # 469.

Grounds Two and Four of the § 2255 Motion contend that
her counsel was ineffective at the plea stage in 1) failing to
object to the sufficiency of the plea agreement, 2) failing to
discuss the plea agreement with Lee, 3) allowing Lee to sign an
“illegal plea agreement,” 4) failing to follow Lee’s request, and
5) misinforming Lee as to her right to a direct appeal.

Id.,

PageID #s 470, 473.
In Ground Three of the § 2255 Motion, Lee contends that
her counsel was ineffective at the sentencing stage in 1) failing
to present mitigating information, and 2) failing to object to
“misinformation” in the Presentence Investigation Report.

Id.,

PageID # 472.
III.

LEE’S § 2255 MOTION IS UNTIMELY.
Lee seeks relief from her sentence under 28 U.S.C.

§ 2255, which provides for a motion by an incarcerated federal
defendant to vacate, set aside, or correct a sentence on the
ground “that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”
4

A motion under § 2255 must be filed within one year of
the latest of
(1) the date on which the judgment of
conviction becomes final;
(2) the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution or
laws of the United States is removed, if the
movant was prevented from making a motion by
such governmental action;
(3) 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; or
(4) the date on which the facts supporting
the claim or claims presented could have been
discovered through the exercise of due
diligence.
28 U.S.C. § 2255(f).
Because the underlying judgment, which was not
appealed, was filed on July 5, 2012, and Lee did not submit her
§ 2255 Motion until April 7, 2015, the court was concerned that
the Motion may have been time-barred.

Accordingly, the court

issued an Order To Show Cause why the § 2255 Motion should not be
dismissed as untimely.

See ECF No. 118.

Lee’s response to the Order To Show Cause appears to
rely on §§ 2255(f)(1) and (4) in arguing whether her § 2255
Motion was timely filed.

Lee does not contend that either

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§ 2255(f)(2) or § 2255(f)(3) applies.3

The court determines that

Lee’s § 2255 Motion was not timely filed.
A.

Lee’s § 2255 Motion is Not Timely Under
§ 2255(f)(1).

A § 2255 motion may be filed within one year of the
date on which the judgment of conviction becomes final.
U.S.C. § 2255(f)(1).

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For purposes of § 2255(f)(1), a judgment

becomes final “when the Supreme Court ‘affirms a conviction on
the merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition
expires.’”

United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045

(9th Cir. 2010) (quoting Clay v. United States, 537 U.S. 522, 527
(2003)).

When a criminal defendant does not take a direct

appeal, a judgment of conviction becomes final when the 14-day
limitation for an appeal has been exhausted.

See United States

v. Lafromboise, 427 F.3d 680, 683 (citing Griffith v. Kentucky,
479 U.S. 314, 321 n.6 (1987)); Fed. R. App. P. 4(b)(1)(A).

3

Although in one filing Lee states that she “just
discovered” Supreme Court case law, she makes no argument that
the Supreme Court has recently announced a new rule of law that
was made retroactive for purposes of § 2255(f)(3). See, e.g.,
ECF No. 117, PageID # 476 (“I just discovered that per a Supreme
Court ruling . . . .”); ECF No. 119, PageID # 488 (“in the course
of her research Lee discovered that her attorneys’ [sic] had
given her deficient information”). Nor does Lee claim that the
Government (or anyone) prevented her from discovering the
unidentified Supreme Court case earlier. Accordingly, this court
does not treat § 2255(f)(3) as being at issue here.
6

In Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001),
the Ninth Circuit applied Rule 6(a) of the Federal Rules of Civil
Procedure to determine how to calculate the one-year period for
the filing of a habeas corpus motion brought under 28 U.S.C.
§ 2244 by a state prisoner whose conviction was final before the
enactment of the Antiterrorism and Effective Death Penalty Act of
1996.

Id. at 1246.

Section 2244 contains timing language

applicable to state prisoners’ habeas petitions that is similar
to the timing language in § 2255(f).

Under Rule 6(a), to

calculate time periods stated in days or in longer periods, one
excludes the day of the event that triggers the period but
includes the last day of the period unless it is a Saturday,
Sunday, or legal holiday.

The Ninth Circuit concluded that the

Patterson “anniversary method,” which is easy for petitioners,
attorneys, and courts to apply, was appropriate.

251 F.3d at

1246; see also United States v. Hurst, 322 F.3d 1256, 1261 (10th
Cir. 2003) (applying “anniversary method” under Rule 6(a) to
determine timeliness of § 2255 motion); Alfaro v. Woodring, 2009
WL 1155668, *1 (E.D. Cal. Apr. 29, 2009) (same).
When a defendant fails to file his or her § 2255 motion
within one year of the anniversary of the date his or her
judgment became final, the defendant relying on § 2255(f)(1) must
demonstrate that the one-year time limit should be tolled.

See

United States v. Castro-Verdugo, 750 F.3d 1065, 1071 (9th Cir.

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2014) (“after the one-year statute of limitations has passed, we
may consider a § 2255 motion to vacate, set aside, or correct a
sentence only if the petitioner establishes eligibility for
equitable tolling[.]”).

A defendant may establish equitable

tolling by showing “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing.”

Id.; see also United

States v. Aguirre-Ganceda, 592 F.3d 1043, 1046 (9th Cir. 2010)
(“Even though Aguirre’s section 2255 motion was untimely, we may
toll the one-year limitation period if (1) the petitioner has
diligently pursued his rights, and (2) extraordinary
circumstances exist.”).

However, “[T]he threshold necessary to

trigger equitable tolling . . . is very high.”

Mendoza v. Carey,

449 F.3d 1065, 1068 (9th Cir. 2006).
Rule 4(b)(1)(A)(i) of the Federal Rules of Appellate
Procedure provides that a defendant’s notice of appeal must be
filed within 14 days after the entry of the judgment being
appealed.

Because Lee did not file a notice of appeal, the one-

year limitation period began to run when the time for filing such
an appeal expired in July 2012.

However, Lee did not submit her

§ 2255 Motion until March 2015.

See ECF No. 119, PageID # 490.

Lee concedes that she missed the one-year deadline.

See ECF No.

124, PageID # 508 (“The Government’s claim is that Lee is timebarred . . . and under ordinary circumstances the government

8

would be right.”).

Because Lee’s § 2255 Motion is untimely, Lee

must demonstrate that equitable tolling applies or her Motion
will be time-barred.

See United States v. Castro-Verdugo, 750

F.3d 1065, 1071 (9th Cir. 2014) (“after the one-year statute of
limitations has passed, we may consider a § 2255 motion to
vacate, set aside, or correct a sentence only if the petitioner
establishes eligibility for equitable tolling[.]”).
B.

Lee Has Failed to Demonstrate That Her Motion is
Timely Under § 2255(f)(4).

A § 2255 motion may be filed within one year of the
date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f)(4).

Lee’s § 2255 Motion is not timely under

§ 2255(f)(4).
Lee claims that she recently discovered that she was
labeled a “career offender” pursuant to section 4B1.1 of the
United States Sentencing Guidelines.

In her reply, Lee says that

her original counsel, William A. Harrison, represented that he
had worked hard to get Lee’s designation as a career offender
“taken off the table” with respect to Lee’s plea agreement.
ECF No. 124, PageID # 508.

See

Lee states that, when she spoke to

Assistant Federal Defender Salina Althof regarding the
possibility of obtaining an Amendment 782 reduction to her
sentence, Ms. Althof informed her that she was ineligible for the

9

reduction because she was a career offender.

See id.

Lee

contends that her status as a career offender is therefore newly
discovered for purposes of § 2255(f)(4).
However, Lee’s status as a career offender was made
clear to her by the court in connection with her sentencing
proceedings.

Her career offender status does not qualify as

newly discovered evidence.

Paragraph 45 of Lee’s Presentence

Investigation Report states, “Pursuant to U.S.S.G § 4B1.1, the
defendant is designated a career offender . . . .”
PageID # 354.

ECF No. 115,

At Lee’s sentencing, the court asked Lee whether

she had had a chance to review the Presentence Investigation
Report and whether she had any objections to it.

Lee answered

that she had reviewed it and had no objections to it.
No. 126, PageID #s 514-15.

See ECF

Additionally, the court noted in

Lee’s sentencing proceedings that, in determining the applicable
guideline range, it was taking into account “her status as a
career offender.”

Id., PageID # 517.

This not only undermines

Lee’s contention that she had reason to believe her career
offender status had been “taken off the table,” but demonstrates
that Lee’s career offender status cannot be deemed “newly
discovered” for purposes of § 2255(f)(4).

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C.

Equitable Tolling Does Not Apply.

Having failed to demonstrate that she timely filed her
§ 2255 Motion within any of the one-year periods set forth in
§ 2255(f), Lee must show that the limitation period was equitably
tolled to proceed with her Motion.

See Castro-Verdugo, 750 F.3d

at 1071; Aguirre-Ganceda, 592 F.3d at 1046.

Lee shows neither

that she was diligent nor that some extraordinary circumstance
stood in her way and prevented the timely filing of her § 2255
Motion.
As noted above, Lee argues that she has only recently
discovered that she was labeled a career offender.

But, as

discussed above, Lee was on notice of her career offender status,
at least by the time she was sentenced.

Lee’s alleged recent

discovery of that career offender status does not demonstrate any
extraordinary circumstance justifying the equitable tolling of
the limitation period.
Lee also argues that, in the course of researching
whether she was eligible for an Amendment 782 reduction of her
sentence, she discovered that she had been misinformed about her
right to appeal.

Lee says she told William A. Harrison, and

later First Assistant Federal Public Defender Alexander Silvert,
that she wanted to appeal her sentence.
# 486.

See ECF No. 119, PageID

According to Lee, Silvert told her that she could not

appeal her sentence because she had waived her right to appeal in
11

her plea agreement.

See id.

Lee argues that she directed her

counsel to file the appeal even if the appeal was barred by the
plea agreement.
Even assuming that Lee has only recently determined
that she may assert ineffective assistance of counsel based on
counsel’s failure to file an appeal, Lee fails to show that she
diligently pursued her rights such that this court should
equitably toll the limitation period.

Lee signed the Memorandum

of Plea Agreement that contained the waiver of appellate rights.
See ECF No. 90, PageID # 205.

The terms of the plea agreement

were reviewed in open court when she pled guilty, and the waiver
was noted in paragraph 8 of the Presentence Investigation Report.
Lee thus knew or should have known about the extent of the waiver
of appeal rights on December 2, 2011, when she signed the
Memorandum of Plea Agreement.

See Shannon v. Newland, 410 F.3d

1083, 1088 n.5 (9th Cir. 2005) (stating that § 2255 provides for
a one-year limitation period that begins running on the date on
which the facts supporting claim could have been discovered
through the exercise of reasonable diligence).

Lee fails to

explain why her alleged recent discovery of her ineffective
assistance rights was based on reasonably diligent conduct.
Nor does Lee show that her counsel’s advice was
incorrect under the circumstances or that an appeal might have
led to a different result.

Lee does not even try to articulate

12

arguments she might have advanced on appeal, much less suggest
why the court should conclude they might have succeeded.

Even if

Lee’s counsel was mistaken about the import of Lee’s plea
agreement (which this court is not finding), such a mistake would
not amount to anything more than negligent conduct that would not
justify the tolling of the limitation period.

See Spitsyn v.

Moore, 345 F.3d 796, 800 (9th Cir. 2003) (while egregious
attorney misconduct may justify equitable tolling, ordinary
attorney negligence does not).

Thus, in Miranda v. Castro, 292

F.3d 1063 (9th Cir. 2002), the Ninth Circuit rejected a
defendant’s claim that equitable tolling applied given an
attorney’s misstatement about the deadline for filing a “federal
habeas” motion.

The Ninth Circuit noted that miscalculation of a

deadline and other negligence do not constitute extraordinary
circumstances sufficient to equitably toll a limitation period.
Id. at 1066-67.

Similarly, any mistake by Lee’s attorney would

not, without more, justify equitable tolling.
In short, Lee does not demonstrate why equitable
tolling should be applied based on her claim that her attorneys
should have filed an appeal.

Lee shows no other alleged

misconduct by her attorneys that excuses the timing of her § 2255
Motion.

See United States v. Buckles, 647 F.3d 883, 890 (9th

Cir. 2011).

13

Under the circumstances presented here, the court
concludes that Lee has not shown that she is entitled to
equitable tolling of the limitation period for filing her § 2255
Motion.
IV.

THE COURT DECLINES TO ISSUE A CERTIFICATE OF
APPEALABILITY.
The court declines to grant Lee a certificate of

appealability.

An appeal may not be taken to the court of

appeals from a final order in a § 2255 proceeding “[u]nless a
circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(B).

The court is to issue a certificate

of appealability “only if the applicant has made a substantial
showing of the denial of a constitutional right.”
§ 2253(c)(2).

28 U.S.C.

When a district court denies a § 2255 petition on

the merits, a petitioner, to satisfy the requirements of
§ 2253(c)(2), “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong.”
(2000).

Slack v. McDaniel, 529 U.S. 473, 484

When, as here, a
district court denies a habeas petition on
procedural grounds without reaching the
prisoner’s underlying constitutional claim, a
[certificate of appealability] should issue
when the prisoner shows . . . that jurists of
reason would find it debatable whether the
petition states a valid claim of the denial
of a constitutional right and that jurists of
reason would find it debatable whether the

14

district court was correct in its procedural
ruling.
Id.

Lee fails to show that “jurists or reason would find it

debatable” whether this court is correct in determining that
Lee’s § 2255 Motion is untimely.
Because Lee has failed to show that her § 2255 Motion
was filed within the one-year limitation period or that
extraordinary circumstances warrant the tolling of the limitation
period, this court does not conclude that reasonable jurists
would find debatable this court’s determination that Lee’s Motion
is barred as untimely.

Given the court’s determination, the

court does not examine whether Lee’s Motion states a valid claim
of the denial of a constitutional right.

This court declines to

issue a certificate of appealability.
V.

CONCLUSION.
Because Lee did not timely file her § 2255 Motion and

because she has failed to demonstrate a basis for the equitable

15

tolling of the limitation period, the court dismisses the § 2255
Motion as untimely, and declines to issue a certificate of
appealability.
IT IS SO ORDERED.
DATED: Honolulu, July 28, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

United States of America v. Linda Lee, Crim. No. 09-00404 SOM; Civ. No. 15-00117
SOM/BMK; ORDER DISMISSING DEFENDANT LINDA LEE’S MOTION UNDER 28 U.S.C. § 2255 AS
UNTIMELY AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

16