Brobston v. United States of America
Filing
11
OPINION and ORDER entered by Judge Joe Billy McDade on 6/6/2011. Fore the foregoing reasons, Respondent's Motion to Dismiss [RII.7]is granted and a certificate of appealability is denied. It is so ordered. Case terminated. (cc: Petitioner) (KB, ilcd)
E-FILED
Monday, 06 June, 2011 04:53:58 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
KENNETH BROBSTON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No.
10-cv-1405
OPINION & ORDER
Before the Court is the United States of America’s Motion to Dismiss
Kenneth Brobston’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence. (RII.7).1 For the following reasons, Respondent’s Motion is GRANTED
and the Petition is DISMISSED WITH PREJUDICE.
PROCEDURAL HISTORY
On December 20, 2001, an indictment was returned against Kenneth
Brobston, charging him with Conspiracy to Manufacture Methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, (Count 1); Possession of
Equipment and Material for Manufacturing Methamphetamine, in violation of 21
U.S.C. § 843(a)(6), (Counts 2-5, 8-9); and Manufacturing Methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), (Counts 6-7). (RI.19).
References to documents in the record of Case No. 01-cr-10081 are to “RI_”;
references to documents in the record of Case No. 10-cv-1405 are to “RII_”.
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On May 17, 2002, Brobston pleaded guilty to Count 1 at a change of plea
hearing. (RI. Minute Entry 05/17/02). A written plea agreement was filed on that
date as well. (RI.196). In the plea agreement, Brobston acknowledged that he had
been informed that Count 1 carried a minimum mandatory term of imprisonment of
twenty years if he had previously been convicted of a prior felony drug offense.
(RI.196¶10). In his plea agreement, Brobston further agreed to waive his right to
appeal and/or collaterally attack his conviction and/or sentence. (RI.196¶15). The
Government agreed that Brobston qualified for a two- to three-level reduction in
offense level under the United States Sentencing Guidelines. (RI.196¶18).
In
addition, the Government agreed to allow Brobston the opportunity to provide
substantial assistance/cooperation to the Government, and to advise the Court of
the nature, extent and value of any cooperation rendered by him. (RI.196¶22-28).
Finally, Brobston executed the written plea agreement with an acknowledgment
that he understood the agreement, that it was voluntary and of his own free will,
that no threats had been made to induce him to plead guilty, and that he was
satisfied with the legal services of his attorney. (RI.196¶32).
A sentencing hearing was held on January 8, 2003.
(RI. Minute Entry
01/08/03). Based upon Brobston’s prior felony drug conviction and the amount of
controlled substance, Brobston was sentenced to the mandatory minimum term of
240 months of imprisonment. He was also sentenced to 10 years of supervised
release, and ordered to pay a $100.00 special assessment. The Government moved
to dismiss Counts 2-9 of the Indictment against Brobston. (RI. Minute Entry
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01/08/03). This Court’s Judgment was entered on January 13, 2003. (RI.288). No
direct appeal was filed.
On December 31, 2003, a motion to reduce (Rule 35) was filed by the
Government.
(RI.381).
A telephone hearing was held on March 25, 2004 (RI.
Minute Entry 03/25/04) and, as a result of the hearing, an Amended Judgment was
filed on March 26, 2004, reducing Brobston’s sentence to 192 months of
imprisonment.
All other aspects of Brobston’s sentence remained as previously
imposed. (RI.406; Minute Entry 03/25/04).
Although in his plea agreement Brobston waived his right to pursue
collateral relief, on December 13, 2010, he filed a Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside or Correct Sentence. (RII.1). In his motion, Brobston claims that
1) his sentence was improperly enhanced for a prior State drug conviction; 2) his
conviction was the result of “double jeopardy” because he had previously been
convicted in State court for possession of a controlled substance; 3) he received
ineffective assistance of counsel because his attorney failed to object to portions of
the presentence report that Brobston feels were incorrect; 4) he received ineffective
assistance of counsel because his attorney misrepresented facts to him at the
sentencing hearing; and 5) he was denied his “right to speak at sentencing.” (RII.1).
Brobston acknowledges that he received a Rule 35 reduction as a result of his guilty
plea, and that he “does not dispute that or his guilt.” (RII.1¶18).
By Text Order entered on December 16, 2010, this Court analyzed Brobston’s
Petition, and found that there could be merit to some of these grounds. Pursuant to
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Rule 4 of the Rules Governing § 2255 Petitions, the Court ordered the Respondent
to file an answer, motion, or other responsive pleading to the Petitioner’s claims
within 60 days. Respondent complied, and on February 14, 2011 it filed its instant
Motion to Dismiss. (RII.7).
Respondent seeks to have Petitioner’s Petition
dismissed as untimely under 28 U.S.C. § 2255(f).
(RII.7).
On August 3, 2010,
Petitioner filed his timely Response. (RII.8).
DISCUSSION
28 U.S.C. § 2255(f) imposes a one year period of limitations upon the filing of
a motion attacking a sentence imposed under federal law.
Absent (1) an
unconstitutional governmental impediment to filing, (2) a newly recognized or
retroactively applicable constitutional right, or (3) a subsequently discovered factual
predicate for the claims for relief, the applicable limitations period begins on the
date the challenged judgment becomes final. 28 U.S.C. § 2255(f)(1)-(4). Because
Brobston does not claim that (1)-(3) applies to this case, the applicable period of
limitations in this case is one year from the date the judgment became final. This
Court sentenced Brobston on January 8, 2003 and entered the written judgment on
Brobton’s conviction on January 13, 2003.
Since Brobston did not appeal his
conviction, his judgment became final ten business days thereafter, when he could
no longer seek appellate review. FED. R. APP. PROC. 4(b)(1)(A).2 Brobston’s Petition
was not filed until December 13, 2010, almost seven years after his period of
This period was extended to 14 days, effective December 1, 2009, by U.S. Order 0915.
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limitations expired. (RII.1). Consequently, Brobston’s Petition is time barred unless
he is able to establish an entitlement to equitable tolling. Robinson v. U.S., 416
F.3d 645 (7th Cir. 2005).
Equitable
tolling
excuses
an
untimely
filing
when
“[e]traordinary
circumstances far beyond the litigant’s control . . . prevented timely filing.” Poe v.
United States, 468 F.3d 473, 477 (7th Cir. 2006) quoting United States v. Marcello,
212 F.3d 1005, 1010 (7th Cir. 2000). Before equitable tolling can apply, Brobston
must show that first, extraordinary circumstances outside of his control and
through no fault of his own prevented him from timely filing his Petition and,
second, that he has diligently pursued his claim, despite any obstacles. Pace v.
Diguglielmo, 544 U.S. 408, 418 (2005); Irwin v. Dep’t of Veterans Affairs, 498 U.S.
89, 96 (1990).
Equitable tolling is an “extraordinary remedy reserved for truly exceptional
situations.” Nolan v. United States, 358 F.3d 480, 483 (7th Cir. 2004); Modrowski v.
Mote, 322 F.3d 965, 967 (7th Cir. 2003) (Noting that the court “ha[s] yet to identify a
circumstance that justifies equitable tolling in the collateral relief context.”); Tucker
v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008) (equitable tolling rarely granted).
Here, Brobston’s explanation for the untimely filing is that he didn’t have
timely access to his presentence report and he lacked knowledge of the law. With
respect to Petitioner’s alleged lack of timely access to the presentence report, this is
not enough to justify equitable tolling. The case of Lloyd v. Van Natta, 296 F.3d 630
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(7th Cir. 2002), is instructive.
There, in the context of a federal habeas case,3
Petitioner claimed that he was entitled to equitable tolling on the ground that he
allegedly did not have access to his trial transcripts. However, the Court noted that
Lloyd was present at his trial and therefore knew the basis on which he could have
asserted his claim of prosecutorial misconduct.
Consequently, possession of the
transcript was not necessary to proceed with filing a habeas petition and the Court
affirmed the dismissal of Lloyd’s petition. By analogy, the same could be said of the
presentence report.
Brobston was present at his sentencing – consequently,
Brobston was privy to the factors which persuaded the Court to impose the sentence
that it did. Therefore, Brobston’s lack of his presentence report does not entitle him
to equitable tolling because Petitioner’s lack of this report did not prevent him from
timely filing his § 2255 claim.
Turning next to Brobston’s claim that his lack of legal knowledge caused him
to be delinquent, this argument must fail as well. It is well-established that a lack
of legal knowledge is not sufficient to merit equitable tolling. See, e.g., Tucker v.
Kingston, 538 F.3d 732, 735 (7th Cir. 2008) (lack of legal expertise is not a basis for
equitable tolling); Marcello, 212 F.3d at 1010 (equitable tolling not warranted by
unclear law); Montenegro v. United States, 248 F.3d 585, 594 (7th Cir. 2001)
(equitable tolling not justified by, inter alia, lack of legal knowledge), overruled on
other grounds by Ashley v. United States, 266 F.3d 671 (7th Cir. 2001).
As noted by the Ninth Circuit in Shannon v. Newland, 410 F.3d 1083, 1088 (9th
Cir.), the Supreme Court has interpreted the statute of limitations provisions of 28
U.S.C. § 2244 and 28 U.S.C. § 2255 in concert with one another. See, e.g.,
Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 402 (2001) (plurality op. of
O’Connor, J.).
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Brobston also provides no evidence that he has diligently pursued his claim,
despite any obstacles.
Pace, 544 U.S. at 418 (petitioner must diligently pursue
claim to be entitled to equitable tolling). He makes no explanation for the sevenyear time lapse, other than he was learning the legal system, he was insecure about
filing a petition, and he didn’t have access to his presentence report. (RII.1 at 12).
He does not show or even mention what steps he took to diligently pursue his
claims.
Instead, he asks this Court “to be lenient and disregard the one year
statute.” (Id.)
For the foregoing reasons, the Court concludes that Brobston’s Petition is
untimely and that he is not entitled to equitable tolling.
Consequently,
Respondent’s Motion to Dismiss must be GRANTED.
CERTIFICATE OF APPEALABILTY
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the Court
“must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.”
Under 28 U.S.C. § 2253(c)(1), a petitioner may only
appeal from the court’s judgment in his section 2255 case if he obtains a certificate
of appealability.
A certificate of appealability may only be issued where the
petitioner “has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). This requirement has been interpreted by the Supreme
Court to mean that an applicant must show that “reasonable jurists would find the
district court's assessment of the constitutional claims debatable or wrong.” Slack
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v. McDaniel, 529 U.S. 473, 484 (2000). A petitioner need not show that the appeal
will succeed, but he must show “something more than the absence of frivolity” or the
existence of mere “good faith” on his part. Miller-El v. Cockrell, 537 U.S. 322, 33738 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Further, where the
district court denies a petition on procedural grounds, such as untimeliness, a
petitioner must make a showing that reasonable jurists “would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at
484. If the district court denies the request, a petitioner may request that a circuit
judge issue the certificate. FED. R. APP. PROC. 22(b)(1).
Based upon the record before it, the Court cannot find reasonable jurists
would debate that Petitioner’s claim is time-barred. The Petitioner himself admits
that he is beyond the one-year statute. (RII.1 at 12). Nor does the Court find
Petitioner’s entitlement to equitable tolling to be debatable. The law is clear that a
lack of legal knowledge is not sufficient to entitle Petitioner to equitable tolling.
Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008). The law is also clear that
failure to obtain possession of an important document, such as a transcript or
presentence report, does not entitle Petitioner to equitable tolling. Lloyd v. Van
Natta, 296 F.3d 630 (7th Cir. 2002).
Finally, there is nothing in the record to
indicate that Petitioner has been diligently pursuing his claim for the past seven
years, which is another requirement to qualify for equitable tolling. Pace, 544 U.S.
at 418. Accordingly, a certificate of appealability is DENIED.
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CONCLUSION
For the foregoing reasons, Respondent’s Motion to Dismiss (RII.7) is
GRANTED, and a certificate of appealability is DENIED. IT IS SO ORDERED.
CASE TERMINATED.
Entered this 6th day of June, 2011.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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