Koons v. United States of America

Filing 21

MEMORANDUM OPINION AND ORDER - Denying 8 MOTION to Dismiss 2255 as Untimely filed by United States of America; Denying 10 MOTION for Summary Judgment and RESISTANCE to 8 Motion to Dismiss filed by Cynthia Koons Denying; and deny ing 15 MOTION for Summary Judgment filed by Cynthia Koons. See order text for details. The parties shall submit briefs for submission of this case on the merits of Koons's claims of equitable tolling and ineffective assist ance of counsel 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action CR10-3048 MWB) according to the following schedule: Petitioners Brief due by 3/3/2014. Respondents Brief due by 3/31/2014. Petitioners Reply Brief due 4/21/2014. Signed by Judge Mark W Bennett on 01/31/2014. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
CINDY KOONS,
No. C 12-3076-MWB
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND
ORDER REGARDING
RESPONDENT’S MOTION TO
DISMISS AS UNTIMELY AND
PETITIONER’S MOTION FOR
SUMMARY JUDGMENT ON
EQUITABLE TOLLING

___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 2 
A. 
Procedural Background ........................................................... 2 
B. 
Factual Background ............................................................... 3 
C. 
Arguments Of The Parties ........................................................ 7 

II. 

LEGAL ANALYSIS ........................................................................ 9 
A. 
Standards For Summary Judgment ............................................. 9 
B. 
Standards For Equitable Tolling............................................... 10 
C. 
Koons’s Equitable Tolling Claim .............................................. 11 
1. 
“Extraordinary circumstances” ....................................... 11 
2. 
“Diligence” ................................................................ 14 
3. 
Disposition ................................................................. 18 

III. 

CONCLUSION ............................................................................ 19 

I.
A.

INTRODUCTION
Procedural Background

In her October 9, 2012, pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set
Aside, Or Correct Sentence By A Person In Federal Custody (§ 2255 Motion) (docket
no. 1), petitioner Cindy Koons asserts that her trial counsel provided ineffective
assistance. More specifically, she claims that her trial counsel was ineffective in failing
to file an appeal after sentencing, despite her request that he do so; failing to challenge
the actual quantity and purity of the methamphetamine involved in the charged offenses;
failing to challenge the prosecution’s statements about her “position” in the alleged
methamphetamine conspiracy; and being “unavailable” for periods of time, leaving her
to wonder about the status of her case.
The case was previously before me on the respondent’s January 1, 2013, Motion
To Dismiss (docket no. 8), in which the respondent sought dismissal of Koons’s § 2255
Motion as untimely pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Koons filed a Resistance (docket no. 10), on February 15, 2013, conceding that her
§ 2255 Motion was not filed within one year of the date of the judgment of conviction,
but asserting that the statute of limitations on her § 2255 Motion should be equitably
tolled, owing to the conduct of her trial counsel, which prevented her from timely filing
her § 2255 Motion.1 Upon finding that Koons had attached several exhibits to her
Resistance that I ordinarily could not consider on a Rule 12(b)(6) motion and that Koons
had injected the issue of equitable tolling, by Order (docket no. 14), filed July 16, 2013,

1

The respondent also filed a Reply (docket no. 13) in further support of its Motion
To Dismiss on March 8, 2013.
2

I reserved ruling on the respondent’s Motion To Dismiss, converted Koons’s Resistance
into a motion for summary judgment pursuant to Rules 12(d) and 56 of the Federal Rules
of Civil Procedure, and set a schedule for Koons to supplement her converted motion and
for further briefing.
Koons filed her Motion For Summary Judgment Re: Equitable Tolling Issue
(docket no. 15) on July 30, 2013, including a Statement Of Undisputed Facts and an
Appendix. The respondent filed a Response (docket no. 18) on August 26, 2013, in
which the respondent did not dispute Koons’s Statement Of Undisputed Facts, but
asserted a few additional facts that the respondent asserted were also undisputed and
material. Koons filed her Reply (docket no. 19), in further support of her Motion For
Summary Judgment, on September 10, 2013, responding to the respondent’s additional
facts and arguments. The respondent’s Motion To Dismiss and Koons’s Motion For
Summary Judgment are now fully submitted.2

B.

Factual Background

The undisputed facts on which Koons’s Motion For Summary Judgment is based
are the following. On June 21, 2011, Koons was sentenced, in Case No. CR 10-3048MWB, to 240 months of imprisonment on her guilty plea to a charge of conspiracy to
distribute methamphetamine, after a prior felony drug conviction, in violation of 21
U.S.C. §§ 846 and 851, and judgment was entered accordingly on June 22, 2011. Koons
did not appeal her conviction or sentence.

2

Neither party requested oral arguments on the pending motions in the manner
required by applicable local rules. I have not found oral arguments to be necessary, in
light of the parties’ written submissions.
3

After her sentencing, Koons retained attorney James Clarity of Spirit Lake, Iowa,
to file a § 2255 Motion on her behalf. Clarity confirmed his representation of Koons and
confirmed that he would timely file a § 2255 Motion on her behalf, by letter dated March
30, 2012. Clarity’s March 30, 2012, letter stated, in its entirety,
I received your note of March 25.
I have had trouble with the CORELINK e-mail program. I
am going to have my IT guy look at it this weekend.
I was able to get in once but it was before you e-mailed me.
I am happy to help you with your file.
I need the name of your unit manager and the phone number
so that I can arrange a visit at [sic] soon as possible.
I have contacted [your trial counsel] about getting a copy of
his file. I will get it.
We will get the motion timely filed and we will see what
happens.
It sounds like you are doing well.
Petitioner’s Appendix at 1 (Exhibit A) (emphasis added). Clarity was aware of the
impending deadline to file the § 2255 Motion, because in a letter also dated March 30,
2012, to Koons’s trial counsel, Clarity stated, “I would like to get the file as soon as
possible because the one year anniversary of [Koons’s] sentencing is June 21, 2012.”
That letter was copied to Koons. Petitioner’s Appendix at 2 (Exhibit B).
Clarity’s March 30, 2012, letter to Koons did not state that, on March 8, 2011,
his license to practice law was suspended by the Iowa Supreme Court pending further
order of that court. See Petitioner’s Appendix at 5-7 (Exhibit D). The record does not
reflect whether that suspension was ever lifted. Clarity’s license to practice law was
again suspended by the Iowa Supreme Court on May 25, 2012, again until further order
of that court. See Petitioner’s Appendix at 8-10 (Exhibit E).
4

On June 15, 2012, notwithstanding that he was then suspended from practicing
law, Clarity sent another letter to Koons, again guaranteeing that her § 2255 Motion
would be timely filed. That letter stated, in its entirety,
Your Petition for Sentencing Relief will be filed before June
21, 2012.
A 2455 [sic] Motion may affect a Rule 35 Motion prepared
by [the] United States Attorney. I hold out little hope that the
U.S. Attorney will file such a motion, but we will see.
I am taking a leave of absence and have turned your file over
to Pamela Wingert at 712-336-3911. Her address is:
Pamela A. Wingert
Wingert Law Office
1212 18th Street
Spirt Lake, IA 51360
Pam is very experienced in Federal criminal law and she is
going to handle the file while I am gone.
I am quite sure that it won’t even come up for hearing until
this fall due to the debriefing and information that the
prosecutor has to check out and verify.
I will see that you receive a copy and I will get back to you
shortly.
Petitioner’s Appendix at 3-4 (Exhibit C) (emphasis added).
Notwithstanding Clarity’s promises, no § 2255 Motion was filed on Koons’s behalf
on or before June 21, 2012. Clarity’s suspension was again confirmed by order of the
Iowa Supreme Court on June 28, 2012. See Petitioner’s Appendix at 11-12 (Exhibit F)
(Order of the Iowa Supreme Court dated June 28, 2012, indicating that Clarity had waived
a show cause hearing and that the temporary suspension of his license to practice law
would continue pending further order of that court).

5

Koons eventually signed and

submitted her pro se § 2255 Motion on October 1, 2012, and it was filed by the Clerk of
Court on October 9, 2012.
The respondent asserts that the following facts are also undisputed.

The

respondent asserts that Koons claims that she was actively working with Clarity in 2011
to prepare a § 2255 Motion, and that Clarity notified Koons by letter dated June 21,
2012, that her case was transferred to attorney Pamela Wingert. See Respondent’s
Statement Of Undisputed Facts In Response To Petitioner’s Motion For Summary
Judgment Re: Equitable Tolling Issue (docket no. 18-1), ¶ 2. The only letter in the
record from Clarity to Koons informing Koons that her file had been transferred to
Ms. Wingert, however, is dated June 15, 2012, not June 21, 2012. Petitioner’s Appendix
at 3-4 (Exhibit C).

The respondent alleges that Koons “discussed the case with

Ms. Wingert on that same date (telephone conference call),” see Respondent’s Statement
Of Undisputed Facts In Response To Petitioner’s Motion For Summary Judgment Re:
Equitable Tolling Issue (docket no. 18-1), ¶ 2 (emphasis added), presumably meaning
June 21, 2012, but that Koons did not retain Ms. Wingert. Id. The respondent cites
nothing in support of this allegation. The respondent also alleges that there were sixteen
days from Koons’s conversation with Ms. Wingert until the actual deadline for filing her
§ 2255 Motion, which was July 7, 2012. Again, the respondent cites nothing in support
of its allegation about the actual deadline for Koons’s § 2255 Motion, although July 7,
2012, appears to be the date that the judgment in her criminal case became final, because
no appeal was filed. More importantly, this allegation indicates that the respondent
understood—and Koons admits—that Koons did not consult with Ms. Wingert until June
21, 2012. The respondent also alleges that there were approximately three months (110
days) from Koons’s notice from Clarity that he was “taking a leave of absence” and her
conversation with Ms. Wingert until Koons actually filed her pro se § 2255 Motion.

6

Koons responds that Clarity’s letters to her and to her trial counsel dated March
30, 2012, indicated that the due date for her § 2255 Motion was June 21, 2012, see
Petitioner’s Appendix at 1 (Exhibit A); Petitioner’s Appendix at 2 (Exhibit B), and that
Clarity reiterated that deadline in his June 15, 2012, letter to her advising her that her
file had been “turned over” to Ms. Wingert, see Petitioner’s Appendix at 3 (Exhibit C).
Koons contends that she was not aware that she actually had approximately another two
weeks to file her § 2255 Motion, because the date that the judgment became final in her
criminal case was July 7, 2011. Thus, Koons alleges that, when June 21, 2012, passed,
she believed that the deadline for her § 2255 Motion had come and gone. Koons admits
that she did consult with Ms. Wingert on June 21, 2012, and that she did not hire
Ms. Wingert to file the motion that day. Koons alleges that, consequently, she was “on
her own” after June 21, 2012, until she filed her pro se § 2255 Motion on October 9,
2012.

C.

Arguments Of The Parties

In support of her Motion For Summary Judgment, Koons argues that the
undisputed evidence shows that she was affirmatively misled by Clarity, the attorney that
she had hired and trusted to file her § 2255 Motion. She points out that, several months
before the deadline for filing her § 2255 Motion, she corresponded with Clarity and that
he assured her that her § 2255 Motion would be timely filed. She points out that shortly
before the deadline—or what Clarity had led her to believe was the deadline—Clarity
again assured her that her § 2255 Motion would be timely filed, even though he was
taking a “leave of absence,” because he had obtained substitute counsel for her. She
points out that Clarity never told her that his license to practice law had been suspended.
Thus, she argues that she diligently pursued the filing of her § 2255 Motion, but that
Clarity’s misconduct and misrepresentations kept her from timely filing it.
7

In its Response to Koons’s Motion For Summary Judgment, the respondent argues
that Koons had notice of Clarity’s inability to file her § 2255 Motion on or about June
21, 2012, so that she had sixteen days from that date until July 7, 2012, the anniversary
of the date on which judgment in her criminal case became final, to file a § 2255 Motion,
either pro se or with the assistance of Ms. Wingert, to whom Clarity had directed her.
The respondent argues that, by the time that Koons discovered Clarity was not going to
file her § 2255 Motion, even assuming that Koons could not reasonably have either filed
her § 2255 Motion on time or requested an extension of time to do so, Koons has not
explained why it took her another three months to file her pro se § 2255 Motion. Thus,
the respondent argues, even conceding that Clarity’s misconduct might originally have
prevented Koons from filing a timely § 2255 Motion, Koons has failed to show that she
was diligent in filing such a motion, so that she is not entitled to equitable tolling to the
date that she actually filed her pro se § 2255 Motion.
In reply, Koons argues that she had no reason to believe that her deadline to file
her § 2255 Motion was anything other than the date that Clarity had told her, June 21,
2012. Thus, she argues that when she could not hire Ms. Wingert to file her § 2255
Motion on June 21, 2012, she reasonably believed that her opportunity to file the § 2255
Motion had come and gone. She contends that a delay of three months before she actually
filed her pro se § 2255 Motion is not unreasonable under these circumstances. She points
out that, in United States v. Wynn, 292 F.3d 226, 228-29 (5th Cir. 2002), the Fifth Circuit
Court of Appeals implicitly recognized that an inmate’s delay from August to January
before filing a § 2255 Motion was not unreasonable.

8

II.
A.

LEGAL ANALYSIS

Standards For Summary Judgment

Summary judgment is only appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show that there
is no genuine issue of material fact and that the moving party is entitled to a judgment as
a matter of law.” FED. R. CIV. P. 56(c) (emphasis added); see Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (“Summary judgment is appropriate if viewing
the record in the light most favorable to the nonmoving party, there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.”); see
generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, “[t]he movant
‘bears the initial responsibility of informing the district court of the basis for its motion,’
and must identify ‘those portions of [the record] . . . which it believes demonstrate the
absence of a genuine issue of material fact.’” Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). In response,
“[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt
as to the material facts,’ and must come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)).
When the parties have met their burden, the district judge’s task is as follows:
“On a motion for summary judgment, ‘facts must be viewed
in the light most favorable to the nonmoving party only if
there is a genuine dispute as to those facts.’” Ricci v.
DeStefano, –––U.S. ––––, 129 S. Ct. 2658, 2677, 174 L. Ed.
2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372, 380,
127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal
quotations omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
9

150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986). . . . . “‘Where the record
taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.’”
Ricci, 129 S. Ct. at 2677, quoting Matsushita, 475 U.S. at
587, 106 S. Ct. 1348.
Torgerson, 643 F.3d at 1042-43.
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ryan v. Capital Contractors, Inc., 679
F.3d 772, 776 (8th Cir. 2012). However, summary judgment is particularly appropriate
when only questions of law are involved, rather than factual issues that may or may not
be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d
617, 620 (8th Cir. 2006).

B.

Standards For Equitable Tolling

The “governing law” against which the parties’ factual contentions must be
measured on summary judgment in this case, see Anderson, 477 U.S. at 248, is the law
of “equitable tolling” of the statute of limitations for § 2255 motions. The Eighth Circuit
Court of Appeals recently summarized the context and requirements for “equitable
tolling,” as follows:
We begin by noting the Antiterrorism and Effective
Death Penalty Act of 1996 imposed, among other things, a
one-year statute of limitations on motions by prisoners under
section 2255 seeking to modify, vacate, or correct their
federal sentences. See Johnson v. United States, 544 U.S.
295, 299, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). The oneyear statute of limitation may be equitably tolled “only if [the
movant] shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood
10

in his way’ and prevented timely filing.” Holland v. Florida,
560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct.
1807, 161 L.Ed.2d 669 (2005)) (applicable to section 2254
petitions); see also United States v. Martin, 408 F.3d 1089,
1093 (8th Cir.2005) (applying same rule to section 2255
motions). We review this claim de novo. See Martin, 408
F.3d at 1093.
Muhammad v. United States, 735 F.3d 812, 815 (8th Cir. 2013).

C.

Koons’s Equitable Tolling Claim

I will consider the two prongs of Koons’s equitable tolling claim in turn. I will
begin with the “extraordinary circumstances” prong, however, rather than the more hotly
contested “diligence” prong. See id. (considering “extraordinary circumstances” before
considering “diligence”).
1.

“Extraordinary circumstances”

As the Eighth Circuit Court of Appeals has also explained,
An attorney’s negligence or mistake is not generally an
extraordinary circumstance, however “serious attorney
misconduct, as opposed to mere negligence, ‘may warrant
equitable tolling.’” Martin, 408 F.3d at 1093 (quoting Beery
v. Ault, 312 F.3d 948, 952 (8th Cir.2002)). For example, the
Supreme Court remanded for a lower court to make an
extraordinary-circumstances determination where the
attorney “failed to file [the client’s] federal petition on time
despite [the client’s] many letters that repeatedly emphasized
the importance of his doing so,” “apparently did not do the
research necessary to find out the proper filing date,” “failed
to inform [the client] in a timely manner about the crucial fact
that the Florida Supreme Court had decided his case,” and
“failed to communicate with his client over a period of
years.” Holland, 130 S.Ct. at 2564.

11

Comparatively, we have found extraordinary
circumstances in a situation where the movant’s attorney
“consistently lied to [the movant] and his wife about the filing
deadline; repeatedly lied to [the movant] and his wife about
the status of [the movant’s] case; refused to communicate with
[the movant] or his family; neglected to file any documents,
belated or not, on [the movant’s] behalf; and failed to return
any of [the movant’s] paperwork to him despite repeated
requests and then demands.” Martin, 408 F.3d at 1095.
Muhammad, 735 F.3d at 816.
The court in Muhammad concluded that the prisoner in that case had not alleged
circumstances that came close to those in Holland or Martin, because, despite the
attorney’s alleged initial statement that she would file a § 2255 Motion for the prisoner,
the attorney then quit communicating with the prisoner; the attorney did not lie to the
prisoner about the deadlines for filing his motion, or repeatedly tell him that she would
file the motion; the attorney did not fail to communicate critical information about the
prisoner’s case; and the attorney did not withhold from the prisoner necessary paperwork
to prepare the motion. Id. Furthermore, while the court did not “condone” the attorney’s
failure to respond to the prisoner’s attempts to contact her, the court concluded that the
attorney’s actions did not amount to “extraordinary circumstances.” Id.
Here, it does not appear that the respondent genuinely disputes Koons’s contention
that Clarity’s misconduct was sufficient to constitute an “extraordinary circumstance,”
and I conclude that, as a matter of law, Clarity’s misconduct was an “extraordinary
circumstance.” Here, Clarity assured Koons on more than one occasion—in his March
30, 2012, letter and his June 15, 2012, letter—that he would make sure that her § 2255
Motion was timely filed, either by him or by Ms. Wingert. Indeed, in his June 15, 2012,
letter, Clarity did not simply suggest that Koons find another attorney to file her § 2255
Motion, but stated that he had “turned over [Koons’s] file” to Ms. Wingert and
represented that Ms. Wingert “[wa]s going to handle the file while [he] [was] gone.”
12

Petitioner’s Appendix at 3-4 (Exhibit C). Cf. Martin, 408 F.3d at 1093 (holding that an
attorney’s repeated lies and deceptions about the status of the prisoner’s case were
“extraordinary circumstances”); and compare Muhammad, 735 F.3d at 816 (noting the
lack of such repeated assurances from counsel). In light of these assurances, there was
no reason for Koons to believe that Ms. Wingert would not file her § 2255 Motion by
the June 21, 2012, deadline or that Koons was required to contact Ms. Wingert prior to
that date to ensure that Ms. Wingert would file Koons’s § 2255 Motion, and the
respondent has either failed or simply not attempted to generate a genuine issue of
material fact otherwise. See Torgerson, 643 F.3d at 1042-43. On June 15, 2012, Clarity
also misrepresented the reason that he was not filing Koons’s § 2255 Motion, stating he
that he was “taking a leave of absence,” when he was, in fact, suspended from practicing
law—a failure to communicate critical information about the prisoner’s case, see
Muhammad, 735 F.3d at 816—so that Koons also had no reason to check with
Ms. Wingert any sooner than June 21, 2012 (assuming that she got the June 15, 2012,
letter before June 21, 2012, and the record is silent on that point) to see if Ms. Wingert
was actually going to file Koons’s § 2255 Motion and no timely warning that she might
need to find another attorney to file her § 2255 Motion.
Furthermore, to the extent that the respondent argues that there were no
“extraordinary circumstances” preventing Koons from filing her § 2255 Motion between
June 21, 2012, and October 9, 2012, the respondent has pointed to nothing in the record
that generates a genuine issue of material fact that Koons knew that the actual deadline
for her § 2255 Motion was not June 21, 2012, but July 7, 2012. Nor has the respondent
pointed to anything in the record that generates a genuine issue of material fact that Koons
knew that there might be any basis, legal or equitable, for excusing a belated § 2255
Motion. Koons has met her burden, at least at summary judgment, to show that the
“extraordinary circumstances” that prevented her from timely filing her § 2255 Motion
13

continued after her actual deadline, and the respondent has failed to meet its burden to
generate genuine issues of material fact that the post-deadline delay was not the result of
“extraordinary circumstances.” See Torgerson, 643 F.3d at 1042-43.
2.

“Diligence”

Although the respondent does not contest or only partially contests Koons’s
assertion that “extraordinary circumstances” prevented the timely filing of her § 2255
Motion or caused the post-deadline delay in the filing of that motion, the respondent
clearly does dispute Koons’s “diligence” in pursuing her § 2255 Motion.

See

Muhammad, 735 F.3d at 815 (identifying the two prongs of an “equitable tolling” claim
as “extraordinary circumstances” and “diligence”). As the Eighth Circuit Court of
Appeals has explained,
“The diligence required for equitable tolling purposes is
‘reasonable diligence’ not ‘maximum feasible diligence.’”
Holland, 130 S.Ct. at 2565 (internal citations and quotation
marks omitted). In Holland, the Supreme Court decided the
habeas petitioner had acted with reasonable diligence when he
wrote his attorney numerous letters requesting information
and providing direction; repeatedly contacted state courts,
state court clerks, and the state bar association in an attempt
to have his attorney removed from the case; and prepared his
own habeas petition and filed it on the very day he discovered
he was out of time. Id.
This court has found a section 2255 movant
demonstrated diligence when he hired counsel well ahead of
the deadline, “did everything in [his] power to stay abreast of
the status of his case,” provided original documents to his
attorney to assist with the motion, filed a complaint with the
state bar, and filed motions with the district court seeking an
extension of time and the return of documents submitted to
the attorney. Martin, 408 F.3d at 1095.

14

Muhammad, 735 F.3d at 816-17; accord Anjulo-Lopez v. United States, 541 F.3d 814,
818 (8th Cir. 2008) (“‘Due diligence therefore does not require a prisoner to undertake
repeated exercises in futility or to exhaust every imaginable option.’ Aron v. United
States, 291 F.3d 708, 712 (11th Cir. 2002). But, it does at least require that a prisoner
make reasonable efforts to discover the facts supporting his claims. Id.” (emphasis in
the original)).
In Muhammad, the court concluded that the prisoner had not acted diligently,
because he did nothing to monitor the status of his case, but simply assumed
“inexplicably” that his attorney’s failure to respond to his inquiries meant that the
attorney “was working on his case.” Id. at 817. The court contrasted that conduct with
another prisoner’s attempts to contact the court to determine if his attorney had filed his
§ 2255 Motion, which the court described as “an action that certainly would fall under
‘reasonable diligence’ in th[at] case.” Id. (citing Anjulo–Lopez, 541 F.3d at 819). The
court noted that, even after learning of his deadline, the prisoner in Muhammad did not
file his § 2255 Motion “immediately” and that the time for filing expired in the interim
between his learning of the deadline and his submission of the motion. Id.; see also
Deroo v. United States, 709 F.3d 1242, 1246 (8th Cir. 2013) (holding that a prisoner had
failed to demonstrate “diligence” for purposes of equitable tolling for the same reason
that he had failed to show “diligence” to invoke the statute of limitations under
§ 2255(f)(4), where he had waited several years before pursuing expungement of his
disciplinary actions); Anjulo-Lopez, 541 F.3d at 818-19 (finding that the prisoner had not
used reasonable efforts to discover the facts underlying his claim, so he had not acted
diligently, where he waited an entire year before he even tried to contact his attorney
about his appeal, and the lack of any notice of appeal was a matter of public record,
which a duly diligent person in the prisoner’s position could have discovered).

15

It is clear, however, that “immediate” filing of a § 2255 Motion, after an attorney
has failed to do so, is not the only way in which a prisoner can act “diligently,” but that
“diligence” depends upon the circumstances faced by the prisoner. See Muhammad, 735
F.3d at 817 (noting that contacting the court to determine if an attorney had filed a § 2255
Motion for a prisoner would fall under “reasonable diligence,” in the circumstances
described in Anjulo-Lopez, 541 F.3d at 819, and concluding, in the case before it, that
the prisoner had not acted diligently because he had not “immediately” filed his § 2255
Motion when his deadline had not yet expired). Indeed, in Martin, the Eighth Circuit
Court of Appeals found that the prisoner had acted diligently, even though his deadline
to file his § 2255 Motion passed on March 12, 2003, where his attorney had told him
that there was no deadline, and the prisoner did not file a pro se § 2255 Motion until
August 1, 2003. 408 F.3d at 1091-92. The court in Martin focused on the prisoner’s
“diligence” in making inquiries of his attorney, not the amount of time that expired
between when he heard from other sources that he had a one-year deadline to file until
he actually filed his § 2255 Motion. Id. at 1095. Here, the respondent has cited no
controlling authority, and I have so far found none, suggesting that there is some bright
line rule about when an unduly long period has passed between expiration of the deadline
and a prisoner’s pro se § 2255 Motion, so that the passage of a certain amount of time
would necessarily demonstrate lack of diligence.
Again, the respondent has pointed to nothing in the record that generates a genuine
issue of material fact that Koons knew that the deadline for her § 2255 Motion was not
June 21, 2012, but July 7, 2012. Nor has the respondent pointed to anything in the record
that shows that Koons knew that there might be any basis, legal or equitable, for excusing
a belated § 2255 Motion filed after what she had been told was the deadline by an attorney
hired to represent her on a § 2255 Motion. See Torgerson, 643 F.3d at 1042-43. The
Eighth Circuit Court of Appeals has expressly recognized that “‘[d]ue diligence . . . does
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not require a prisoner to undertake repeated exercises in futility or to exhaust every
imaginable option.’” Anjulo-Lopez, 541 F.3d at 818 (quoting Aron, 291 F.3d at 712).
The record suggests that Koons reasonably believed that filing a § 2255 Motion after June
21, 2012, would be futile.
Furthermore, in the circumstances presented here, I do not believe that due
diligence requires a prisoner to undertake “immediately” what she has been led to believe
would be a futile attempt to file a belated § 2255 Motion. A prisoner like Koons, who is
in custody, has limited access to reliable sources of information about § 2255
proceedings; she had to come to the conclusion that, notwithstanding the lack of a timely
§ 2255 Motion filed by her attorney or by another attorney that she has been told by her
attorney would “handle” her “file” in a timely manner, filing an untimely § 2255 Motion
would not be “futile”; and she then had to file a pro se § 2255 Motion. I have known
assistant United States attorneys who have routinely made untimely filings, even though
they undoubtedly know better, and they do not have the excuse of lack of legal resources.
The respondent’s argument that Koons necessarily was not “diligent,” because three
months passed between the expiration of her deadline and the filing of her pro se § 2255
Motion is an argument that seems to me to be based more on “maximum feasible
diligence” than “reasonable diligence.” Muhammad, 735 F.3d at 816 (explaining that
only “reasonable diligence,” not “maximum feasible diligence” is required (citing
Holland, 130 S.Ct. at 2565)).
The critical lacunae in the present record, however, are that nothing indicates the
content of the conversation that Koons had with Ms. Wingert on June 21, 2012, or
precisely what transpired between June 21, 2012, and October 1, 2012, when Koons
signed and submitted her pro se § 2255 Motion. Certainly, there is nothing in the record
about the conversation between Koons and Ms. Wingert, or about any other
circumstances, that suggests that Koons knew as of June 21, 2012, that she actually had
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until July 7, 2012, to file her § 2255 Motion; that she could attempt to file what she
understood was an untimely § 2255 Motion after June 21, 2012 (or after July 7, 2012),
based on equitable tolling; that filing what Koons understood was an untimely § 2255
Motion would not necessarily be futile; or when and why Koons eventually decided to
sign and submit her § 2255 Motion on October 1, 2012. The fact that the respondent (or
the court) can now imagine things that Koons could have done earlier than October 1,
2012, simply does not demonstrate that Koons necessarily did not act diligently. By
pointing to the lack of explanation for the delay from June 21, 2012, to October 1, 2012,
however, the respondent has generated a genuine issue of material fact as to whether
Koons acted “diligently” during that period.
3.

Disposition

In summary, I conclude, as a matter of law, that Koons was prevented by the
“extraordinary circumstances” of her attorney’s misconduct from filing a timely § 2255
Motion. On the other hand, I conclude that the respondent has generated a genuine issue
of material fact as to whether Koons acted “diligently” after June 21, 2012, so that
Koons’s Motion For Summary Judgment must be denied. See Torgerson, 643 F.3d at
1042-43 (for summary judgment to be proper, the non-movant must not only fail to
generate genuine issues of material fact, but the movant must be entitled to summary
judgment as a matter of law). I conclude that there are holes in the present record
concerning, at least, the following issues: (1) what Koons knew as of June 21, 2012,
about the deadline for filing her § 2255 Motion; (2) what she knew and when about the
viability of a belated § 2255 Motion; and (3) what transpired during the 3-month period
between June 21, 2012, which Koons thought was the deadline for filing her § 2255
Motion, and October 1, 2012, when she actually signed and submitted her § 2255 Motion.
Because I find that the record is incomplete on the question of equitable tolling, and—at
least as importantly—because I cannot judge on a summary judgment motion the
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credibility of any explanation for the passage of time from expiration of the perceived
deadline and the filing of the § 2255 Motion, I simply conclude that Koons has made
sufficient prima facie showing that the statute of limitations should be equitably tolled in
this case. Consequently, I will reserve the determination of her claim of equitable tolling
until that issue is submitted along with the merits of her claims of ineffective assistance
of counsel. Indeed, it is possible that the record will ultimately reveal that Koons’s
ineffective assistance claims are without merit, mooting the question of the timeliness of
her § 2255 Motion. Although I will not dismiss her § 2255 Motion as untimely, neither
will I grant Koons’s Motion For Summary Judgment that equitable tolling applies to her
§ 2255 Motion.
III.

CONCLUSION

Upon the foregoing,
1.

The respondent’s January 1, 2013, Motion To Dismiss (docket no. 8), upon

which I previously reserved ruling, is now denied;
2.

Koons’s July 30, 2013, Motion For Summary Judgment Re: Equitable

Tolling Issue (docket no. 15) is also denied, and the issue of equitable tolling is reserved
for submission with the merits of Koons’s claims of ineffective assistance of counsel;
3.

The parties shall submit briefs for submission of this case on the merits of

Koons’s claims of equitable tolling and ineffective assistance of counsel according to the
following schedule:
a.

Koons shall have to and including March 3, 2014, to file her brief

on equitable tolling and her claims for § 2255 relief;
b.

The respondent shall have to and including March 31, 2014, to file

a responsive brief; and

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c.

Koons shall have to and including April 21, 2014, to file any reply

brief.
IT IS SO ORDERED.
DATED this 31st day of January, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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