Sun v. United States of America

Filing 4

INITIAL REVIEW ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action CR12-4061-DEO). Mr. Sun was represented in criminalcase number 12-CR-4061-DEO by court appointed attorney Priscilla Forsyth. Ms. Forsyth shall receiv e a copy of this Order, be added to the docket in this matter by the Clerk of Court, and will be required to participate in any hearingscheduled on the merits of the Petition. The Clerk of Court, through the CJA Administrator, shall appoint counsel to represent pro se Petitioner. Petitioners newly appointed counsel shall have 30 days from the date ofhis/her appointment to amend or supplement and brief. Respondent shall file either an answer or motion within 30 days of Petitioner's amended filing. In the event that an answer is filed by Respondent, the Magistrate Judge will establish an appropriate briefing schedule. Signed by Senior Judge Donald E OBrien on 8/14/15. (copy w/nef mailed to petitioner; eCJA Panel Administrator) (djs)

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

No.

vs.

15-CV-4057-DEO

INITIAL REVIEW ORDER

UNITED STATES OF AMERICA,
Respondent.
____________________
Before the Court is a pro se pleading filed by William
Sun [hereinafter Mr. Sun].

Mr. Sun’s pro se motion is an

application for relief pursuant to 28 U.S.C. § 2255 to vacate,
set aside, or correct a sentence by a person in federal
custody. Mr. Sun’s filing states that he received ineffective
assistance of counsel.

Docket No. 1.

incarcerated

to

pursuant

a

1

Mr. Sun is currently

conviction

distribution of methamphetamine.

related

to

the

See 12-CR-4061-DEO, Docket

No. 109.
I.

ANALYSIS
According to 28 U.S.C. § 2255(f), a 1-year period of

limitation shall apply to a motion under 28 U.S.C. § 2255.

1

The original pleading (Docket No. 1) was filed on June
30, 2015, but that document was not signed. Mr. Sun submitted
a signed pleading on July 13, 2015 (Docket No. 2).

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.

The one

year statute of limitations has repeatedly been applied in
these types of cases by the 8th Circuit Court of Appeals.
they have set out:
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
2

As

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).
This Court entered judgment against Mr. Sun on April 1,
2013.

Mr. Sun did not appeal.

Accordingly, the one year

statute of limitations ran sometime in 2014.

Mr. Sun filed

the present motion on June 30, 2015, well after the statute of
limitations expired.
However, as set out above, a prisoner may assert a 28
U.S.C. § 2255 based on new precedent.

Mr. Sun premises his

Section 2255 Motion on the case of United States v. Davison,
761 F.3d 683, 684 (7th Cir. 2014).
the Davison case on July 30, 2014.

The 7th Circuit entered
If new case law becomes a

valid ground to file a Section 2255, the petitioner has a year
from the date the case is entered or recognized to file their
motion.

The Court will allow Mr. Sun’s case to proceed to

determine if Mr. Sun can maintain a Section 2255 action in
light of the Davison case.
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II.

APPOINTMENT OF COUNSEL.
Based upon a review of the submitted pleading, the Court

has determined that appointed counsel is appropriate in order
that the Petitioner be adequately represented in this matter.
The Court has discretion to appoint counsel “at any stage of
the proceeding if the interest of justice so requires.”
U.S.C.

§3006A(a)(2)(B);

Fed.R.Gov.

§2255

Proc.

18

8(c).

Appointment of counsel is mandated only if the court grants an
evidentiary hearing, Rule 8(c), or if the court permits
discovery

and

deems

counsel

“necessary

utilization of discovery procedures.”

for

effective

Rule 6(a).

Based upon

a review of the submitted pleading, the Court has determined
that appointed counsel is appropriate in order that the
Petitioner be adequately represented in this matter.
III.

FORMER COUNSEL
Finally, the Court notes that Mr. Sun raises a claim of

ineffective assistance of counsel.

A claim of ineffective

assistance of counsel waives the attorney-client privilege as
to communications with the attorney necessary to prove or
disprove the claim.

United States v. Pinson, 584 F.3d 972,

978 (10th Cir. 2009) (citing Tasby v. United States, 504 F.2d
4

332, 336 (8th Cir. 1974)(“When a client calls into public
question the competence of his attorney, the privilege is
waived.”)).

Therefore,

counsel

whose

representation

is

challenged shall cooperate with the United States and provide
information,

documents,

and

an

affidavit,

if

necessary,

responsive to any ineffective assistance of counsel claim in
Mr. Sun’s § 2255 motion.
case

number

Mr. Sun was represented in criminal

12-CR-4061-DEO

Priscilla Forsyth.

by

court

appointed

attorney

Ms. Forsyth shall receive a copy of this

Order, be added to the docket in this matter by the Clerk of
Court, and will be required to participate in any hearing
scheduled on the merits of the Petition.
Where former counsel cooperates by reviewing his or her
files, by providing information and documents, by preparing an
affidavit and/or by testifying during an evidentiary hearing,
the Court deems it appropriate to pay him or her under the
Criminal Justice Act, 18 U.S.C. § 3006A.

After providing the

requisite services, counsel may submit a CJA 20 voucher
following the proper procedures outlined by the CJA panel
administrator for this type of proceeding. Absent exceptional
circumstances

or

an

extraordinary
5

reason

for

doing

so,

counsel’s claim for services should not exceed 10 hours and a
claim for other expenses should not exceed $250.00.
IV.

CONCLUSIONS
For the reasons set out above, the Court will appoint Mr.

Sun counsel. Former counsel will assist the Respondent as set
out above.
UPON THE FOREGOING, IT IS HEREBY ORDERED that the Clerk
of Court, through the CJA Administrator, shall appoint counsel
to represent pro se Petitioner.
IT IS FURTHER HEREBY ORDERED that Petitioner’s newly
appointed counsel shall have thirty (30) days from the date of
his/her

appointment

to

amend

or

supplement

Petitioner’s pleading (Docket No. 1).

and

brief

If there will be no

amendment or supplement and brief, Petitioner’s counsel shall
file a report setting that out.
IT IS FURTHER ORDERED that the Respondent shall file
either an answer in accordance with Rule 5(b) of the Rules
Governing Section 2255 Proceedings or an appropriate motion
under Federal Rule of Civil Procedure 12 within thirty (30)
days of the Petitioner’s amended filing or report to the
Court.

See Rule 4(b) of the Rules Governing Section 2255
6

Proceedings.

In the event that an answer is filed by the

Respondent, the Magistrate Judge will establish an appropriate
briefing schedule.

Former criminal counsel shall assist the

Respondent as set out above.
IT IS SO ORDERED this 14th day of August, 2015.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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