Parson v. United States of America---PER #2 ORD-PRO SE DOCS TO BE FILED AS SEALED CORR-GOV RESPONSE DUE 30 DAYS AFTER AMD COMP-REPLY BRIEF DUE 10 DAYS AFTER-ADD INEFFECTIVE ATTY NAMED IN AMD COMP

Filing 24

ORDER (CR06-4028-DEO) granting 14 Motion to Dismiss 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Mr. Parson's case is dismissed. Signed by Senior Judge Donald E OBrien on 8/14/15. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

DAVID DEWAYNE PARSON,
Petitioner,

No. 12-CV-4117-DEO

v.
UNITED STATES OF AMERICA,

ORDER

Respondent.
____________________
I.

INTRODUCTION
This matter is before this Court on the Government’s

Motion to Dismiss Petitioner David Parson’s [hereinafter Mr.
Parson] 28 U.S.C. § 2255 Petition.
parties

appeared

for

hearing

on

Docket No. 14.

April

14,

2014.

The
After

listening to the parties’ arguments, the Court took the matter
under consideration and now enters the following.
II.

FACTUAL AND PROCEDURAL BACKGROUND
On March 21, 2006, the grand jury returned an indictment

against Mr. Parson on two charges related to the distribution
of methamphetamine.

On May 11, 2007, Mr. Parson appeared

before this Court to plead guilty to Counts 1 and 2.
4028-DEO-1, Docket No. 44.

06-CR-

On November 20, 2007, this Court sentenced Mr. Parson to
235

months

concurrently.

incarceration

on

each

count,

to

06-CR-4028-DEO-1, Docket No. 60.

be

served

Mr. Parson

appealed his sentence to the 8th Circuit Court of Appeals.
The 8th Circuit vacated Mr. Parson’s sentence and remanded for
resentencing.

United States v. Parson, 343 F. App’x 163, 165

(8th Cir. 2009).

This Court subsequently re-sentenced Mr.

Parson to 175 months incarceration on each count to run
concurrently.

06-CR-4028-DEO-1, Docket No. 93.

Mr. Parson filed the present 28 U.S.C. § 2255 petition
December 31, 2012.

Docket No. 1.

On January 2, 2013, this

Court entered an Initial Review Order allowing Mr. Parson’s
case to proceed and appointed counsel.

Docket No. 2.

In his

pro se filing, Mr. Parson made two primary arguments.

First,

that he was denied effective assistance of counsel because
counsel did not object to the drug quantities attributed to
him at sentencing.

Second, he argues the government acted in

bad faith by offering Mr. Parson only limited use immunity.
On April 4, 2013, Mr. Parson’s appointed counsel filed a
motion to withdraw and a brief pursuant to Anders v. State of
California, 386 U.S. 738 (1967).
2

Docket No. 11.

This Court

denied

the

motion

to

withdraw

and

opportunity to file a pro se reply.

gave

Mr.

Parson

Docket No. 13.

the

Shortly

there after, the Government filed the present Motion to
Dismiss.

Docket No. 14.

The Court held a hearing on the

Government’s motion on April 24, 2014, where Mr. Parson’s
previous counsel, attorneys Craig Lane and Joseph Flannery,
testified.
III.

Docket No. 23.

STANDARDS
A.

Motion to Dismiss Standard

A district court is given discretion in determining
whether to hold an evidentiary hearing on a motion under 28
U.S.C. § 2255.

See United States v. Oldham, 787 F.2d 454, 457

(8th Cir. 1986).

In exercising that discretion, the district

court must determine whether the alleged facts, if true,
entitle the movant to relief.

See Payne v. United States, 78

F.3d 343, 347 (8th Cir. 1996).

“Accordingly, [a district

court may summarily dismiss a motion brought under 28 U.S.C.
§ 2255] if (1) the ... allegations, accepted as true, would
not entitle the [movant] to relief, or (2) the allegations
cannot be accepted as true because they are contradicted by
the record, inherently incredible, or conclusions rather than
3

statements of fact.”

Engelen v. United States, 68 F.3d 238,

240–41 (8th Cir. 1995) (citations omitted); see also Delgado
v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (stating
that an evidentiary hearing is unnecessary where allegations,
even if true, do not warrant relief or allegations cannot be
accepted as true because they are contradicted by the record
or lack factual evidence and rely on conclusive statements);
United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973)
(stating that no evidentiary hearing is necessary where the
files and records of the case demonstrate that relief is
unavailable or where the motion is based on a question of
law).

Stated differently, a 28 U.S.C. § 2255 motion can be

dismissed without a hearing where “the files and records of
the case conclusively show that the prisoner is entitled to no
relief.”

28 U.S.C. § 2255; see also Standing Bear v. United

States, 68 F.3d 271, 272 (8th Cir. 1995) (per curiam).

See

also Hessman v. United States, C08-3052-LRR, 2012 WL 10486
(N.D. Iowa Jan. 3, 2012), appeal dismissed (June 21, 2012).
B.

§ 2255 Standard

Section 2255 of Title 28 of the United States Code
provides four general grounds for relief:
4

A prisoner in custody under sentence of a
court established by Act of Congress
claiming the right to be released upon the
ground [1] that the sentence was imposed in
violation of the Constitution or laws of
the United States, or [2] that the court
was without jurisdiction to impose such
sentence, or [3] that the sentence was in
excess of the maximum authorized by law, or
[4] is otherwise subject to collateral
attack, may move the court which imposed
the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963
(8th Cir. 2007) (“Under 28 U.S.C. § 2255 a defendant in
federal custody may seek post conviction relief on the ground
that his sentence was imposed in the absence of jurisdiction
or in violation of the Constitution or laws of the United
States, was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”); Bear Stops v.
United States, 339 F.3d 777, 781 (8th Cir. 2003) (“To prevail
on

a

§

2255

motion,

the

petitioner

must

demonstrate

a

violation of the Constitution or the laws of the United
States.”). Thus, a motion pursuant to § 2255 “is ‘intended to
afford federal prisoners a remedy identical in scope to
federal Habeas corpus.’”

United States v. Wilson, 997 F.2d

429, 431 (8th Cir. 1993) (quoting Davis v. United States, 417
5

U.S. 333, 343, 94 S. Ct. 2298, 41 L. Ed. 2d 109 (1974));
accord Auman v. United States, 67 F.3d 157, 161 (8th Cir.
1995) (quoting Wilson).
One “well established principle” of § 2255 law is that
“‘[i]ssues

raised

and

decided

on

direct

appeal

cannot

ordinarily be relitigated in a collateral proceeding based on
28 U.S.C. § 2255.’”

Theus v. United States, 611 F.3d 441, 449

(8th Cir. 2010) (quoting United States v. Wiley, 245 F.3d 750,
752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780.
exception

to

that

principle

arises

when

there

One
is

a

“miscarriage of justice,” although the Eighth Circuit Court of
Appeals

has

“recognized

such

an

exception

only

when

petitioners have produced convincing new evidence of actual
innocence,”
exception

and
beyond

the

Supreme

Court

situations

has

involving

not

extended

actual

the

innocence.

Wiley, 245 F.3d at 752 (citing cases, and also noting that
“the Court has emphasized the narrowness of the exception and
has expressed its desire that it remain ‘rare’ and available
only in the ‘extraordinary case.’”

(citations omitted)).

Just as § 2255 may not be used to relitigate issues raised and
decided on direct appeal, it also ordinarily “is not available
6

to correct errors which could have been raised at trial or on
direct appeal.”

Ramey v. United States, 8 F.3d 1313, 1314

(8th Cir. 1993) (per curiam ).

“Where a defendant has

procedurally defaulted a claim by failing to raise it on
direct review, the claim may be raised in Habeas only if the
defendant

can

first

demonstrate

either

cause

prejudice, or that he is actually innocent.”

and

actual

Bousley v.

United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed.
2d 828 (1998) (internal quotations and citations omitted).
“Cause

and

prejudice”

to

resuscitate

a

procedurally

defaulted claim may include ineffective assistance of counsel,
as defined by the [Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)] test, discussed
below. Theus, 611 F.3d at 449. Indeed, Strickland claims are
not procedurally defaulted when brought for the first time
pursuant to § 2255, because of the advantages of that form of
proceeding for hearing such claims. Massaro v. United States,
538

U.S.

500

(2003).

Otherwise,

“[t]he

Supreme

Court

recognized in Bousley that ‘a claim that “is so novel that its
legal basis is not reasonably available to counsel” may
constitute cause for a procedural default.’” United States v.
7

Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (quoting Bousley, 523
U.S. at 622, with emphasis added, in turn quoting Reed v.
Ross, 468 U.S. 1, 16 (1984)). The “actual innocence” that may
overcome either procedural default or allow relitigation of a
claim that was raised and rejected on direct appeal is a
demonstration “‘that, in light of all the evidence, it is more
likely than not that no reasonable juror would have convicted
[the petitioner].’”

Johnson v. United States, 278 F.3d 839,

844 (8th Cir. 2002) (quoting Bousley, 523 U.S. at 623); see
also House v. Bell, 547 U.S. 518, 536–37 (2006).

“‘This is a

strict standard; generally, a petitioner cannot show actual
innocence where the evidence is sufficient to support a
[conviction on the challenged offense].’” Id. (quoting McNeal
v. United States, 249 F.3d 747, 749–50 (8th Cir. 2001)).
IV.

ISSUES
The Government’s primary argument is that Mr. Parson’s

claim is time barred.

The Government also argued during the

hearing that Mr. Parson’s petition should fail on the merits
because his trial counsel did object to the drug quantities at
his sentencing and because the Government properly used Mr.
Parson’s own admissions regarding drug quantity against him.
8

V.

ANALYSIS
A.

Statute of Limitations

The Government’s first argument is that Mr. Parson’s
petition is time barred.
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 one-year
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
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).
Muhammad v. United States, 735 F.3d 812, 815 (8th Cir. 2013).
The chronology of Mr. Parson’s case makes clear that he filed
the

present

limitations.

petition

outside

the

applicable

statute

As set out in the Government’s Motion:

[a]mended Judgment was entered and filed on
December 23, 2009. (CrD 93).
Movant did
9

of

not appeal. Movant’s 14-day deadline to
file an appeal expired on January 6, 2010,
therefore the time limitation for purposes
of § 2255 began January 7, 2010. Movant
did not file his § 2255 motion on or before
the expiration of the one-year deadline,
January 7, 2011. In fact, Movant filed his
current motion (CvD 1) on December 31,
2012, substantially later than one year
after the final judgment of conviction.
Docket No. 14, p. 3-4.

Mr. Parson seemingly conceded this

point but argued that the statute of limitations should be
equitably tolled.

As set out in his counsel’s Anders brief:

Mr. Parson urges that the statute of
limitations should be equitably tolled for
the following reasons: (1) Mr. Parson was
incarcerated during the time that he was
preparing his pro se motion; (2) Mr. Parson
was diligently pursuing his case from the
time of his second sentencing hearing (See
United States v. Martin, 408 F.3d 1089,
1092 (8th Cir. 2005)); (3) Mr. Parson was
without the assistance of counsel; (4) Mr.
Parson was unable to access the records of
his underlying case necessary to prepare
his motion despite his diligent efforts
(See United States v. Martin, 408 F.3d
1089, 1095 (8th Cir. 2005)); and (5) Mr.
Parson is not educated or well informed
about the legal issues that are the subject
of his motion.
Docket No. 12, p. 6.
Unfortunately for Mr. Parson, the reasons he relies upon
in urging equitable tolling are the exact type of ordinary
10

jail

house

delays

circumstances.

that

do

not

qualify

as

extraordinary

The 8th Circuit has stated that equitable

tolling was not proper when an unrepresented prisoner claimed
lack of legal resources.
463

(8th

Cir.

2000).

Kreutzer v. Bowersox, 231 F.3d 460,
The

8th

Circuit

has

found

that

segregation in special housing with minimal resources and
access to the outside world is not ground for equitable
tolling.

Muhammad, 735 F.3d at 815.

The 8th Circuit has

stated that a mistake about whether an attorney was helping
file for habeas relief is not grounds for equitable tolling.
Id. at 815-16.

It goes with out saying the vast majority of

prisoners are laymen when it comes to the filing of legal
documents.
genuine,

However, such ignorance, although common and

does

not

amount

to

the

type

of

extraordinary

circumstance that would activate equitable tolling.
Finally, Mr. Parson alleges he did not have access to his
legal papers.

All prisoners encounter some hindrances in

obtaining their paper work.

For better or worse, that is the

typical jail house experience.
delay is extraordinary.

The question is whether such

In this case, Mr. Parson has failed

to allege that his inability to access legal papers was truly
11

extraordinary.

As stated by the Government, “[m]ovant merely

makes a statement that he didn’t receive any records from
former counsel until mid 2011.

Even if that was the case,

Movant waited approximately 18 months after receiving his case
file from former counsel to file his pro se § 2255 motion.”
Docket No 14, p. 2-3.

The 8th Circuit has made clear that

routine delays caused by once or future counsel do not waive
the statute of limitations.

Once or future counsel’s actions

must be, at least somewhat, duplicitous if they are to be
considered extraordinary. There is no such allegation in this
case. Because Mr. Parson’s reasons for delay are either
typical

problems

encountered

by

inmates

or

have

been

previously been found to be non-extraordinary by the 8th
Circuit, Mr. Parson has failed to show that equitable tolling
should apply in his case.

Accordingly, the one year statute

of limitations applies and his claim is time barred.
B.

Merits

Because Mr. Parson’s claims are time barred, the Court
need not reach them.

However, since it is clear that even if

Mr. Parson’s claims were not time barred they would still
fail, the Court will briefly address them.
12

In his first argument, Mr. Parson argues that his trial
counsel was ineffective for failing to object to the drug
quantities at the time of sentencing.
his

counsel’s

Anders

brief,

“[a]

However, as set out in
careful

review

of

the

pre-sentence report and the transcript for the sentencing
hearing in this matter reveals that Mr. Parson’s counsel did
file objections to the quantities attributed to Mr. Parson in
the pre-sentence report and that counsel for Mr. Parson
reiterated these objections orally at the sentencing hearing.”
Docket No. 12, p. 7. Additionally, the 8th Circuit previously
considered

the

issue

of

Mr.

Parson’s

drug

concluded that it was correctly calculated.
App’x at 165.

quantity

and

Parson, 343 F.

Accordingly, Mr. Parson’s claim is baseless.

His attorney did in fact challenge the drug quantities, and
the issue is moot because the quantities were correctly
calculated.
Mr. Parson’s second claim has slightly more merit, if
only

because

it

exposes

the

fact

that

although

all

the

defendants are encouraged to cooperate with the Government,
such cooperation sometimes backfires.

13

Mr. Parson gave a proffer statement where he admitted a
lot of incriminating information about his own involvement in
the

drug

trade.

Mr.

Parson

had

an

agreement

with

the

government that such information could not be used against him
at the time of trial.

Mr. Parson states that his proffer

agreement is an immunity agreement, and under that agreement
his statement should not have been used against him.

In

essence Mr. Parson argues that he had, or should have had, a
USSG

§1B1.8

agreement,

which

could

have

prohibited

the

Government from using his own statements against him when
calculating his sentencing guideline range.
agreement

Mr.

statements

could

proceeding.
clearly.

Parson
be

entered
used

into

against

Docket No. 20.

makes
him

However, the

clear
in

a

that

his

sentencing

Subsection F sets that out

Because he pled guilty, his statements were never

used against him at trial, they were only used against at a
sentencing.

Accordingly the Government’s use was completely

in accordance with the agreement.
What the Government did in Mr. Parson’s case may not seem
fair, and possibly has a chilling effect on other defendants
giving fully honest proffer statements.
14

As Mr. Parson’s

counsel stated in her Anders brief, both this Court and Judge
Bennett have been critical of similar practices in the past.
However, the 8th Circuit has made clear the Government can
make its own determinations about what immunity to extend in
an agreement and the district court cannot vary simply because
it would have acted differently.

See

United States v.

Buckendahl, 251 F.3d 753, 764 (8th Cir. 2001).

Accordingly,

Mr. Parson has failed to show any type of bad faith on the
part the of the AUSAs that would entitle him to habeas relief.
VI.

CONCLUSION
For the reasons set out above, the Government’s Motion to

Dismiss, Docket No. 14, is GRANTED, and Mr. Parson’s case is
dismissed.
IT IS SO ORDERED this 14th day of August, 2015.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

15