United States of America v. Lomax

Filing 4

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 6/2/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
STANLEY LOMAX,
Defendant.

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No. 11 C 3553
(04 CR 531)

MEMORANDUM OPINION AND ORDER
Stanley Lomax (“Lomax”) has filed a 28 U.S.C. §22551 motion
to challenge his three-count conviction on which he is currently
serving a 308 month sentence.2

This Court has conducted the

preliminary review called for by Rule 4(b) of the Rules Governing
Section 2255 Proceedings for the United States District Courts
(“Section 2255 Rules”), and this memorandum opinion and order
reflects the results of that initial consideration.
Motion ¶2(b) reports that Lomax was sentenced on August 29,
2005, while Motion ¶9(d) reports that his conviction and sentence
were affirmed by our Court of Appeals on July 16, 2007.

Lomax

neither sought certiorari (Motion ¶9(g)) nor pursued any other
post-conviction remedies (Motion ¶10), but Clay v. United States,
537 U.S. 522, 532 (2003) holds that the time for seeking

1

All further references to Title 28’s provisions will
simply take the form “Section--.”
2

Lomax’s conviction and sentencing were handled by this
Court’s former colleague, Honorable David Coar. Because Judge
Coar retired at the end of 2010, this new filing came to this
Court’s calendar via random assignment.

certiorari should be added to determine when limitations begin to
tick for Section 2255 purposes (bringing that date to mid-October
2007).
Lomax freely acknowledges that his current filing comes long
after--indeed, over 2-1/2 years after--the one-year limitation
period prescribed by Section 2255(f) expired in October 2008.
Motion ¶18, reproduced here in full to avoid any possible
mischaracterization, sets out both that acknowledgment and
Lomax’s excuse for that extraordinary delay:
The Petitioner’s § 2255 Motion is filed out-of-time,
and/or beyond the one (1) year time limit. This is due
to the fact that Petitioner paid an attorney to
represent him in this matter by filing his §2255 Motion
in a timely fashion. The Petitioner, for all this
time, was led to believe that the Attorney he had
hired, and paid, had already filed his §2255 Motion.
However, the Petitioner just recently found out that
the Attorney that Petitioner had hired took his money
and did nothing and filed nothing. Proof of all these
facts is attached, in the form of correspondence with
this Attorney confirming all above facts and
statements, as Exhibit A to this Motion.3 The
Petitioner believes this is sufficient evidence of his
due diligence in attempting to file his Motion on time.
Also, the Petitioner believes this is sufficient cause
and prejudice to cause his Motion to be considered
timely filed.
That concept--the idea that “due diligence” can coexist with
what is colloquially termed “sleeping on one’s rights”--is more
than counterintuitive.

What Lomax’s position boils down to is

3

[Footnote by this Court] Despite what he says there,
Lomax did not file any Exhibit A. This opinion nonetheless
credits his assertion, for it does not stave off his filing’s
untimeliness for the reason stated in the ensuing text.
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that his lawyer’s asserted malpractice in failing to proceed as
promised somehow excuses Lomax’s own total disregard of the
passage of an extraordinarily lengthy period of time without
taking the common-sense step of himself inquiring whether a
Section 2255 motion had been filed on his behalf--and if so, why
no ruling had been forthcoming for so long.

In terms of legal

doctrine the relief that Lomax seeks in that respect would come
under the rubric of “equitable tolling.”
That notion has been flatly--and unequivocally--rejected by
our Court of Appeals.

Here is what it said on that subject in

Modrowski v. Mote, 322 F.3d 965, 967-968 (7th Cir. 2003)
(numerous citations omitted):4
Equitable tolling excuses an untimely filing when
“[e]xtraordinary circumstances far beyond the
litigant’s control...prevented timely filing.” [United
States v.] Marcello, 212 F.3d [1005,] 1010 [(7th Cir.
2003)]. We rarely deem equitable tolling appropriate-in fact, we have yet to identify a circumstance that
justifies equitable tolling in the collateral relief
context.
*

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[W]e, and numerous other courts, have held that
attorney negligence is not grounds for equitable
tolling. The rationale is that attorney negligence is
not extraordinary and clients, even if incarcerated,
must “vigilantly oversee,” and ultimately bear

4

Although Modrowski was issued in the context of the
federal habeas corpus treatment of a state conviction assertable
under Section 2254, the one-year limitation period established by
Section 2244(d)(1) for such cases parallels the one-year
limitation period under Section 2255(f). And the principles of
equitable tolling are identical under the two sections.
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responsibility for, their attorneys’ actions or
failures.
And that holding dooms Lomax’s long-belated motion because of its
untimeliness.
Conclusion
Under Section 2255 Rule 4(b) “it plainly appears from the
motion, any attached exhibits and the record of prior proceedings
that the moving party is not entitled to relief.”

Accordingly

that Rule mandates the dismissal of Lomax’s motion, and this
Court so orders.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

June 2, 2011

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