Mordi v. USA

Filing 19

ORDER DISMISSING CASE. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Staci M. Yandle on 6/19/2017. (tfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UCHE PHILLIP MORDI,
Petitioner,
vs.

Case No. 14-cv-00759-SMY

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM AND ORDER
This matter comes before the Court on Petitioner Uche Phillip Mordi’s 28 USC § 2255
Petition seeking withdrawal of his guilty plea (Doc. 5). For the following reasons, the Petition is
DENIED.
Background
On October 20, 2009, Petitioner Uche Phillip Mordi pleaded guilty to a violation of 21
U.S.C. § 841(a)(1) and was sentenced to 120 months in prison. United States v. Uche P. Mordi,
Case No. 09-cr-40026, Doc. 26. Judith Kuenneke of the Federal Public Defender’s office
represented Mordi throughout the proceedings. Id.
Mordi initially filed a Petition to Vacate, Set Aside or Correct Sentence pursuant to 28
U.S.C § 2255 on Oct 21, 2010 (No. 10-cv-828-GPM, Doc. 1). The Court subsequently granted
his motion to withdraw his Petition without prejudice and noted that a future § 2255 petition
would likely be time barred (No. 10-cv-828-GPM, Doc. 12).

Mordi filed the instant § 2255 Petition on July 2, 2014, attacking his conviction and
seeking to withdraw his plea. The Government responded (Doc. 13) and Mordi replied (Doc.
16). Mordi filed a Motion to Supplement on September 11, 2015 (Doc. 18).1
Mordi’s Petition raises five grounds: (1) police misconduct and misrepresentation; (2)
prosecutorial misconduct for breach of plea agreement, violation of right to effective counsel,
and compelled self-incrimination; (3) that his plea and conviction were based on inadmissible
evidence; (4) ineffective assistance of counsel; and (5) that his plea agreement was (a)
unknowing and (b) involuntary. Specifically, in support of ground (1), Mordi alleges that Illinois
State Police Trooper Todd Zeigler falsified and concealed a police report in order to justify a
prolonged traffic stop of Mordi’s vehicle. As to ground (2), Mordi asserts that the government
failed to abide by the rules of discovery by not producing the concealed police report, thereby
breaching the plea agreement and compelling him to incriminate himself. For ground (3), Mordi
claims that the interrogating officers searched his cellphone without his consent, thereby
compelling him to incriminate himself because he assumed that the officers had seen photos of
him with large amounts of cash. As to ground (4), Mordi alleges that his attorney advised him
that, “absent a finding that the search of his vehicle was unlawful, there were no grounds on
which his [incriminating] statements would be inadmissible.” (Doc. 5, p. 3). Finally, in support
of ground (5), Mordi contends that the concealed police report and his attorney’s statement that
his incriminating statements were admissible, rendered his plea and plea agreement “unknowing
and involuntary.”

1

Petitioner’s Reply at Doc. 16 renders the Motion for Clarification MOOT. Similarly, this Order renders the
Motion to Supplement MOOT.

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Timeliness of the Petition
Initially, Mordi relies on § 2255(f)(4) to toll the statute of limitations for grounds 1, 2 and
5(a). Under § 2255(f)(4) the one year statute of limitations begins to run on “the date on which
the facts supporting the claim or claims presented could have been discovered through the
exercise of due diligence.”
Facts supporting Mordi’s claim could have been discovered on February 22, 2013, when
he received the partial draft of Trooper Zeigler’s March 12, 2009 report from Effingham County
Jail. He therefore had until February 22, 2014 to timely file his Petition. However, the Petition
was filed on July 2, 2014.
Mordi argues that the statute of limitations should be tolled because the March 12, 2009
report was similar to Zeigler’s March 13, 2009 report and, as a result, he was misled and
prevented from discovering the true facts until April 2014. Although the reports were facially
similar, at a minimum, due diligence required that Mordi read the March 12, 2009 report when
he received it. If he did, he should have discovered the relevant facts at that time. If he didn’t,
due diligence was lacking.
In his Reply, Mordi also asserts tolling arguments under § 2255(f)(2), which provides
that the limitations period begins to run, “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[.]”
Mordi argues that Trooper Zeigler’s failure to disclose the partial report to him, ISP or Counsel
created an impediment to his ability to file a timely Petition. Even if Trooper Zeigler’s failure to
disclose the report initially impeded Mordi from filing his Petition, the impediment was removed

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when the report was disclosed to Mordi on February 22, 2013. Thus, the statute of limitations
was not tolled and grounds 1, 2 and 5(a) are time barred.
Mordi further argues that the Government should be estopped from raising the statute of
limitations defense because Trooper Zeilger’s deliberate conduct caused him to miss the
statutory deadline. Specifically, Mordi alleges that Trooper Zeigler consciously decided to not
“make his superiors aware that he had prepared an ISP document that the ISP did not have a
record of.” (Doc. 16, p. 10).
Equitable estoppel is applicable when a party takes active steps to prevent the other party
from suing in time. Angiulo v. United States, 867 F. Supp. 2d 990, 999 (N.D. Ill. 2012). It may
be invoked to prevent a party from obtaining a benefit from inequitable conduct. Id. However,
equitable estoppel against the government is generally “disfavored and rarely successful.”
Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000). “When equitable estoppel is invoked against
the government, the misconduct required is more than mere negligence and must be an
affirmative act to misrepresent or mislead a [party] about his rights or remedies.” Angiulo, 867
F. Supp. 2d at 999 (internal quotations omitted).
Here, Mordi’s allegations do not trigger equitable estoppel the government. There is no
evidence beyond Mordi’s conclusory allegations that there was any affirmative act to
misrepresent or mislead Mordi as to his rights or remedies. Mordi contends that Trooper Zeigler
concealed a draft report that contained information contradicting the final report. Even if the
Court were to accept those allegations as true, the government did not prevent Mordi from suing
in time. As stated previously, Mordi had an opportunity to file his Petition within the statute of
limitations but failed to do so.

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The remaining grounds – 3, 4 and 5(b), can only be considered timely if § 2255(f)(3) is
applicable. Grounds 3, 4 and 5(b) allege an illegal search of Petitioner’s cell phone in violation
of the Supreme Court’s rulings in Riley v. California, 134 S. Ct. 2473 (2014). § 2255(f)(3)
allows a claim to be brought within one-year of “the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been newly recognized and made
retroactively applicable to cases on collateral review.” In Riley, the Supreme Court held that in
general, law enforcement may not conduct a warrantless search of a cell phone seized from an
arrestee. However, Riley is not retroactively applicable to cases on collateral review. See
Coppedge v. United States, No. 4:09-CR-00064-F-1, 2016 WL 2901740, at *4 (E.D.N.C. May
18, 2016), appeal dismissed, No. 16-6768, 2017 WL 656751 (4th Cir. Feb. 17, 2017). Therefore,
Mordi cannot rely on that Opinion to defeat the statute of limitations.
As there is no basis to toll the statute of limitations in this case, Mordi’s Petition is
subject to a one-year statute of limitations that begins to run “on the date on which the judgment
of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Mordi’s judgment of conviction became
final when his time for filing an appeal expired… 14 days after entry of the judgment. See,
Clarke v. United States, 703 F.3d 1098, 1100 (7th Cir. 2013), Fed. R. App. P. 4 (2009).
Judgment was entered on October 20, 2009, and Mordi did not appeal. Thus, the judgment
became final on November 3, 2009 and the statute of limitations under § 2255(f)(1) expired on
November 3, 2010. Mordi’s Petition was filed on July 2, 2014, long after the limitations period
expired. Accordingly, the Petition is denied as untimely.

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IT IS SO ORDERED.
DATED: June 19, 2017
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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