Sun v. United States of America

Filing 17

ORDER granting 11 Motion to Reconsider 4 Initial Review Order and to dismiss the petition; denying 1 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action CR12-4061-DEO); denying as moot 10 Motion for Rule 6 Discovery. No certificate of appealability will issue for any claim in this case. Signed by Judge Leonard T Strand on 3/2/2016. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
WILLIAM EDWARD SUN,
Petitioner,

No. C15-4057-LTS
(No. CR12-4061-DEO)

vs.

ORDER ON RESPONDENT’S
MOTION TO RECONSIDER, TO
UNITED STATES OF AMERICA,
DISMISS AND TO DENY
Respondent.
DISCOVERY
____________________________

I.

INTRODUCTION

This case is before me on a motion (Doc. No. 11) by respondent the United States
of America (the Government) to reconsider the court’s initial review order (Doc. No. 4),
to dismiss William Edward Sun’s petition (Doc. No. 1) to vacate, set aside, or correct a
sentence by a person in federal custody as untimely and deny Sun’s motion (Doc. No.
10) for discovery. Sun has filed a resistance (Doc. No. 12). No party has requested
oral argument and, in any event, I find that oral argument is not necessary.

See N.D.

Ia. L.R. 7(c). The motion is now fully submitted.
II.

PROCEDURAL HISTORY

On November 26, 2012, Sun entered pleas of guilty to the following charges
brought by indictment in the underlying criminal case1 against him: (a) Count 1, which
charged that Sun did knowingly and unlawfully combine, conspire, confederate, and
agree, with others to distribute 500 grams or more of a mixture or substance containing
1

United States v. William Edward Sun, No. 12-cr-04061-DEO.

a detectable amount of methamphetamine, which contained at least 50 grams or more of
actual (pure) methamphetamine, in violation of Title 21 U.S.C. § 841(a)(1) and
841(b)(1)(A), and (b) Count 2, which charged that Sun did knowingly and intentionally
distribute and aid and abet others in the distribution of methamphetamine within 1000
feet of a public playground or school, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(C)
and 860(a) and 18 U.S.C. § 2. Senior United States District Judge Donald E. O’Brien
accepted the guilty pleas on January 3, 2013. On April 1, 2013, Sun was sentenced to
120 months in prison, to be followed by a six year term of supervised release, and ordered
to pay a special assessment of $200.

Sun did not pursue a direct appeal of his

convictions or his sentence.
On June 30, 2015, Sun filed a petition pursuant to 28 U.S.C. § 2255 to vacate, set
aside, or correct sentence by a person in federal custody.

Sun claims ineffective

assistance of counsel and asserts that he was guilty only of purchasing small amounts of
drugs for his personal use. On August 8, 2015, Judge O’Brien issued the initial review
order (IRO). Among other things, Judge O’Brien appointed counsel for Sun and ordered
the Government to respond to the petition. Doc. No. 4.
On October 16, 2015, Sun filed a motion to compel discovery. The Government
then filed its motion to reconsider the IRO, to dismiss the Section 2255 petition as
untimely and to deny the discovery motion as moot. On November 1, 2015, Sun filed
a resistance to the Government’s motion.2
III.
A.

APPLICABLE STANDARDS

Motions to Dismiss
The Federal Rules of Civil Procedure authorize a pre-answer motion to dismiss

for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
2

This case was reassigned to me after Judge O’Brien passed away.

2

The Supreme Court has provided the following guidance in considering whether a
pleading properly states a claim:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled
to relief.” As the Court held in [Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007)], the pleading standard Rule
8 announces does not require “detailed factual allegations,” but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.
Id., at 555, 127 S. Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286,
106 S. Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers “labels
and conclusions” or “a formulaic recitation of the elements of a cause of
action will not do.” 550 U.S., at 555, 127 S. Ct. 1955. Nor does a
complaint suffice if it tenders “naked assertion[s]” devoid of “further
factual enhancement.” Id., at 557, 127 S. Ct. 1955.
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Id., at 570, 127 S. Ct. 1955. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.
Id., at 556, 127 S. Ct. 1955. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that
a defendant has acted unlawfully. Ibid. Where a complaint pleads facts
that are “merely consistent with” a defendant's liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’ ” Id.,
at 557, 127 S. Ct. 1955 (brackets omitted).
Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).
Courts assess “plausibility” by “‘draw[ing] on [their own] judicial experience and
common sense.’” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting
Iqbal, 556 U .S. at 679). Also, courts “‘review the plausibility of the plaintiff's claim
as a whole, not the plausibility of each individual allegation.’”

Id. (quoting Zoltek Corp.

v. Structural Polymer Grp., 592 F.3d 893, 896 n. 4 (8th Cir. 2010)). While factual
“plausibility” is typically the focus of a Rule 12(b)(6) motion to dismiss, federal courts
may dismiss a claim that lacks a cognizable legal theory.
3

See, e.g., Somers v. Apple,

Inc., 729 F.3d 953, 959 (9th Cir. 2013); Ball v. Famiglio, 726 F.3d 448, 469 (3d Cir.
2013); Commonwealth Prop. Advocates, L.L.C. v. Mortg. Elec. Registration Sys., Inc.,
680 F.3d 1194, 1202 (10th Cir. 2011); accord Target Training Intern., Ltd. v. Lee, 1
F.Supp.3d 927 (N.D. Iowa 2014).
“The well-pleaded facts alleged in the complaint, not the legal theories of recovery
or legal conclusions identified therein, must be viewed to determine whether the pleading
party provided the necessary notice and thereby stated a claim in the manner contemplated
by the federal rules.” Topichian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848
(8th Cir. 2014) (quoting Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1057–58
(8th Cir. 2002)). “A pro se complaint must be liberally construed, Estelle v. Gamble,
429 U.S. 97, 106, 97 S. Ct. 285, 50 L.Ed.2d 251 (1976), and ‘pro se litigants are held
to a lesser pleading standard than other parties[,]’ Fed. Express Corp. v. Holowecki, 552
U.S. 389, 402, 128 S. Ct. 1147, 170 L.Ed.2d 10 (2008).” Id. If an allegation is
discernable, even if it lacks “legal nicety, then the district court should construe the
complaint in a way that permits the layperson's claim to be considered within the proper
legal framework.” Id. (citing Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004)).
In deciding a motion brought pursuant to Rule 12(b)(6), the court may consider
certain materials outside the pleadings, including (a) “the materials that are ‘necessarily
embraced by the pleadings and exhibits attached to the complaint,’”

Whitney, 700 F.3d

at 1128 (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n. 4 (8th Cir. 2003)),
and (b) “‘materials that are part of the public record or do not contradict the complaint.’”
Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (quoting
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). Thus, the
court may “consider ‘matters incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint whose authenticity is unquestioned;’
without converting the motion into one for summary judgment.”
4

Miller, 688 F.3d at

931 n. 3 (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (3d ed. 2004)).
B.

Statute of Limitations for Section 2255 Petitions
As amended by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2255(f) states:
(f) A 1–year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) 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;
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2255(f). Thus, the AEDPA “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.”

Muhammad v. United States, 735 F.3d 812,

815 (8th Cir. 2013) (citing Johnson v. United States, 544 U.S. 295, 299 (2005)).
The AEDPA’s one-year limitations period is subject to equitable tolling, but “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.”

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Muhammad, 735 F.3d at 815 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010) (in
turn quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
IV.

DISCUSSION

The Government contends that Sun filed his Section 2255 petition outside of the
one-year deadline and, therefore, that it must be denied as untimely.

Sun does not

dispute that his petition is untimely but argues that I should delay ruling on the
Government’s motion and grant his discovery request so he may explore the issue of
whether a viable argument exists for equitable tolling.
A.

The Initial Review Order
In the IRO, this court correctly stated that if a prisoner is relying on new case law,

then the one-year limitations period begins to run on the date the new precedent issues.
Doc. No. 4 at 3. The court then noted that Sun relies on a recent decision by the Seventh
Circuit Court of Appeals, United States v. Davison, 761 F.3d 683 (7th Cir. 2014). The
Government points out, however, that the “new precedent” rule applies only to opinions
that are (a) issued by the United States Supreme Court and (b) made retroactively
applicable to cases on collateral review. 28 U.S.C. § 2255(f)(3). Sun agrees. Doc.
No. 12 at 1. Because Davison is not a Supreme Court opinion, Sun’s one-year time
period did not start anew when that opinion was issued. The IRO was incorrect as to
this issue.

Unless equitable tolling applies, Sun’s Section 2255 petition must be

dismissed as untimely.
B.

Equitable Tolling
Sun argues that his motion for discovery should be granted prior to the court’s

ruling on the Government’s motion to dismiss. He contends that he may be able to make
an equitable tolling argument if discovery leads to evidence that the Government was
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unable to prove the elements necessary to give rise to his ten-year mandatory minimum
sentence. The Government argues that the discovery motion should be denied as moot
because Sun has not advanced a viable argument that equitable tolling may apply.
As noted above, “a ‘petitioner’ is ‘entitled to equitable tolling’ only if he 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, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
“Equitable tolling is an exceedingly narrow window of relief.” Deroo v. United States,
709 F.3d 1242, 1246 (8th Cir. 2013) (quoting Riddle v. Kemna, 523 F.3d 850, 857 (8th
Cir.2008) (en banc), abrogated on other grounds by Gonzalez v. Thaler, ––– U.S. ––––
, 132 S. Ct. 641, 653–54 (2012)). Here, Sun argues that he “may” have an equitable
tolling argument if discovery leads to evidence that the Government lacked sufficient
evidence to convict him on a charge that carried a ten-year mandatory minimum sentence.
However, Sun makes no argument as to how the potential lack of evidence would affect
the determination of (a) whether he pursued his remedies diligently and (b) whether an
extraordinary circumstance prevented timely filing of the petition.
“Delays in obtaining documentary evidence to support a motion to vacate do not
entitle the defendant to an extension of the limitations period.”

United States v.

Cervantes, No. CR 03-30047-02, 2008 WL 4200163, at *2 (D.S.D. Sept. 11, 2008)
(citing Gassier v. Bruton, 255 F.3d 492, 495 (8th Cir. 2001)). Here, I find Sun has
failed to make an argument warranting either a grant of his discovery motion or equitable
tolling. Although the information he hopes to obtain may have been important to the
merits of a timely Section 2255 petition, the lack of such information did not prevent the
filing of that petition. As such, the Government’s motion to reconsider the IRO and to
dismiss this action will be granted.

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C.

Sun’s Discovery Motion
The Government argues that because Sun failed to file a timely Section 2255

petition and has advanced no viable argument for equitable tolling, I should dismiss Sun’s
discovery motion as moot. I agree.
V.

CERTIFICATE OF APPEALABILITY

A petitioner under Section 2255 may not appeal from an adverse final order unless
“a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1).
Sun must make a substantial showing of the denial of a constitutional right in order to be
granted a certificate of appealability.

See Miller–El v. Cockrell, 537 U.S. 322 (2003);

Garrett v. United States, 211 F.3d 1075, 1076–77 (8th Cir. 2000); Mills v. Norris, 187
F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151 F.3d 872, 873–74 (8th Cir.
1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565,
569 (8th Cir. 1997). “A substantial showing is a showing that issues are debatable among
reasonable jurists, a court could resolve the issues differently, or the issues deserve
further proceedings.” Cox, 133 F.3d at 569.
Applying this standard, I find that a certificate of appealability is not appropriate.
Should Sun wish to seek further review of his petition, he may request a certificate of
appealability from a judge of the United States Court of Appeals for the Eighth Circuit.
See Tiedman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997).
VI.

CONCLUSION

For the reasons set forth herein:
1.

Respondent’s motion (Doc. No. 11) to reconsider the initial review order

and to dismiss the petition is granted. Petitioner William Edward Sun’s petition (Doc.
No. 1) pursuant to 28 U.S.C. § 2255 is dismissed.
2.

No certificate of appealability will issue for any claim in this case.
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3.

Petitioner’s motion (Doc. No. 10) for discovery is denied as moot.

IT IS SO ORDERED.
DATED this 2nd day of March, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

9