Lombardo v. United States of America

Filing 22

MEMORANDUM Opinion and Order: Petitioner's Motion to Vacate, Set Aside or Correct Sentence 1 is denied and the Government's Motion to Dismiss Petitioner's Motion 4 is granted. Enter Memorandum Opinion and Order. Hearing set for 7/30/15 is stricken and no appearance is necessary. Civil case terminated. Signed by the Honorable James B. Zagel on 7/29/2015. Mailed notice(ep, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
v.

No. 15 C 1038
Judge James B. Zagel

JOSEPH LOMBARDO.
MEMORANDUM OPINION AND ORDER
Petitioner Joseph Lombardo seeks relief, in part and in whole, from his conviction. He
filed his motion pursuant to 28 U.S.C. § 2255. For the following reasons, Petitioner’s motion is
denied.
Petitioner’s § 2255 motion was untimely filed due to a mistake by counsel who knew that
the petitioner had one year (and only one year) to file a § 2255. The error arose because counsel
believed that the clock began running when a motion for rehearing from denial of certiorari was
issued by the Supreme Court. The clock, however, actually started running when the Supreme
Court originally denied his certiorari on March 25, 2013. More than one year passed from this
date before Petitioner filed his § 2255 motion on May 31, 2014. This petition, therefore, is more
than two months late.
Petitioner asserts that he is entitled to equitable tolling because his lawyer misunderstood
the proper statute of limitations date. This kind of mistake, however, is not enough to invoke
equitable tolling in § 2255 cases. See Robinson v. United States, 416 F.3d 645, 651 n.1 (7th Cir.
2005). Missing a deadline because that deadline has been miscalculated is not excusable neglect.
Although abandoning a client may be an event that justifies a finding of excusable neglect,
miscalculating a deadline is no such event. See Holland v. Florida, 560 U.S. 631, 651-52 (2010),
Lawrence v. Florida, 549 U.S. 327, 336 (2007). In the post-conviction world, the prisoner has

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no absolute right to counsel and would be well-off counting to the tolling date himself along with
his hired counsel.
Petitioner also argues that he is entitled to a delayed start of the limitations period
because his claims were based on evidence that was not discovered until much later. Specifically,
Petitioner points to evidence submitted not long ago by Charles Miceli. The problem with this
argument, however, is that the evidence that has been submitted is old material. Miceli has filed
many papers asserting that he has proof that Petitioner was not part of a homicide considered at
trial. Some of the these papers were filed during Petitioner’s trial in 2005 when Miceli filed a
motion claiming that Petitioner was innocent of one homicide (in 2005), and the claims were the
subject of reports in the news in 2005. In other words, this evidence is not new and does not
entitle Petitioner to a delayed start.
Furthermore, the Miceli information is not valuable to anyone because Miceli is not a
credible witness. Miceli claims to have been present in 1974 when one person was murdered, but
his memories seem unlikely because Miceli was a young child in 1974 and Miceli has shown to
lack credibility on several occasions. He is a fabulist and worthless as a witness. In any event, his
fables are not new and are lost to Petitioner’s claims in this case.
ENTER:

James B. Zagel
United States District Judge
DATE: July 29, 2015

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