Campbell v. USA - 2255
Filing
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MEMORANDUM. Signed by Judge William M Nickerson on 6/11/13. (c/m 6/12/13 mps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TYRONE ROBERT CAMPBELL, a.k.a.
Mr. Muhammad, Muhammad Shahid, and
Tyrone Moore
Petitioner,
v.
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UNITED STATES OF AMERICA
Respondent.
*
*
*
CIVIL ACTION NO. WMN-13-471
CRIMINAL NO. WMN-10-218
***
MEMORANDUM
Petitioner was convicted on one count of conspiracy to aid and assist the preparation of
false tax returns, three counts of aiding and assisting the preparation of false tax returns, and one
count of aggravated identity theft in violation of 18 U.S.C. § 371, 26 U.S.C. § 7206(2) and 18
U.S.C. § 1028(A) & (c)(5). On June 29, 2011, he was sentenced to a cumulative 60-month term
of confinement in the U.S. Bureau of Prisons with 3 years supervised release, and ordered to pay
a $500.00 special assessment and $1,250,000.00 in restitution. Judgment was entered that same
date. See United States v. Campbell, Criminal No. WMN-10-218 (D. Md.) at ECF No. 62. On
August 19, 2011, judgment was amended to correct a clerical mistake. ECF No. 68. Petitioner
did not file a notice of appeal.
On February 13, 2013, Petitioner filed a Motion to Set Aside, Vacate or Correct a
Sentence pursuant to 28 U.S.C. § 2255, dated February 9, 2013. ECF No. 80. Petitioner claims
that counsel was ineffective for: (1) failing to appeal pursuant to Petitioner’s request; (2) giving
Petitioner the wrong advice with regard to his guilty plea; and (3) failing to object to the
enhancement of his sentence.
As previously noted by the Court, 28 U.S.C. § 2255 provides a one-year statute of
limitations for the filing of a motion to vacate.1
Upon examination of the Motion, on February
26, 2013, the court issued an Order which advised Petitioner that the timeliness of the Motion
under § 2255(1) was in question and afforded him the opportunity to file a memorandum
explaining why the Motion may be timely or why equitable tolling may apply, as required
pursuant to Hill v. Braxton, 277 F.3d 701, 706-07 (4th Cir. 2002). ECF No. 82.
On March 28, 2013, Petitioner filed a “Memorandum Explaining Why his Motion Should
Be Considered Timely.” ECF No. 83. He states that he was unaware that counsel did not file an
appeal as he had requested. Petitioner contends that he is unfamiliar with the appeal process and
it was not until July 2012, that he realized that “an appeal does not take that long” and that he
should commence the 2255 process due to the applicable statute of limitations period. He
seemingly raises a statutory and equitable tolling argument alleging that the one-year statute of
limitation period only commenced when he discovered that his attorney did not file an appeal.
Petitioner affirms that he requested a copy of the docket report and although it was sent to his
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This section provides:
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 the 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.
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institution, prison officials would not give it to him or allow him to read it. ECF No. 83. He
claims that he has been diligently pursuing his claims beginning in July, 2012. Although given
the opportunity to do so, Respondent has not filed a reply to Petitioner’s memorandum.
The one-year statute of limitations on § 2255 motions is subject to equitable tolling. See
Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000). Equitable tolling applies only in Athose
rare instances where B due to circumstances external to the party’s own conduct “it would be
unconscionable to enforce the limitation period against the party and gross injustice would
result.” Id. at 330; see also Holland v. Florida, __ U.S. __, 130 S.Ct. 2549, 2560 (2010). To
equitably toll the limitations period, a prisoner must have pursued his rights diligently and an
“extraordinary circumstance” prevented timely filing. Id. at 2562.
Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005) (one-year statute of limitations on petitions for federal habeas relief is
subject to equitable tolling if petitioner shows that he has been pursuing his rights diligently and
some extraordinary circumstance stood in his way and prevented timely filing of petition).
Petitioner bears the burden of establishing the basis for equitable tolling by showing (1)
that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented him from timely filing. Green v. Johnson, 515 F.3d 290, 304 (4th
Cir. 2008); see also Ramos–Martínez v. United States, 638 F.3d 315, 322–23, 325 (1st Cir. 2011)
(citation and internal quotation marks omitted); see also Riva v. Ficco, 615 F.3d 35, 39 (1st Cir.
2010) (holding that equitable tolling remains “the exception rather than the rule,” and that a
“habeas petitioner bears the burden of establishing the basis for equitable tolling”).
In light of this precedent, the Court will presume that Petitioner has shown “extraordinary
circumstances” for purposes of equitable tolling and that Petitioner did request that his attorney
file an appeal, if not in person after the sentencing hearing. Petitioner alleges that he did not
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learn that his trial attorney never filed such an appeal until July, 2012, and consequently asserts
that the limitations period should be tolled until that date.
That is not, however, the end of the inquiry. In order to be entitled to equitable tolling for
that period, Petitioner must also show that he had been pursuing his rights diligently throughout
that period of nearly thirteen months.
The Supreme Court has held that the diligence required for equitable tolling purposes is
“‘reasonable diligence.’” See, e.g., Lonchar v. Thomas, 517 U.S. 314, 326 (1996). In Holland,
the Supreme Court made clear that this is distinct from “maximum feasible diligence.” 130 S.Ct.
at 2565. The reasonableness of Petitioner's actions depends on the totality of the circumstances.
See Ramos–Martínez, 638 F.3d at 324.
In Holland, the petitioner wrote his attorney numerous letters seeking information and
giving directions, and repeatedly contacted the courts, clerks, and the bar association to have the
attorney removed from his case. Holland, 130 S.Ct. at 2565. The petitioner in that case also
immediately filed a pro se habeas petition on the same day that he learned the limitations period
had expired due to his attorney's misconduct. By contrast, Petitioner here exercised no such
diligence during the period of more than thirteen months during which he contends that he relied
on his attorney's misrepresentation that an appeal had been timely filed.
Petitioner does not allege that he attempted to contact counsel with regard to his appeal;
he merely states that he waited for counsel to contact him as to the appeal. The plea agreement
itself plainly states that Petitioner is waiving his appeal rights. ECF No. 53 at pg. 7. There is no
evidence of any misrepresentation by attorney Kent as to the pendency of an appeal. Finally, and
perhaps most telling, Petitioner did not immediately make any attempt, by motion, § 2255
petition, or otherwise, to file a direct appeal when he allegedly learned in July 2012 that no
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appeal had been filed. Instead, Petitioner waited until February, 2013 – more than seven months
later – before attempting to address the situation.
The Court finds that Petitioner's apparent lack of initiative falls short of reasonable
diligence in pursuing his right to a direct appeal. There is nothing in the record to suggest that
Petitioner thought an appeal was pending or undertook any efforts to inquire as to the status of
his appeal. Under the circumstances, Petitioner has not demonstrated reasonable diligence, and
therefore is not entitled to equitable tolling of the limitations period. For these reasons, the
Motion shall be denied and dismissed as untimely.
An inmate who filed a Motion to Vacate has no absolute entitlement to appeal a district
court's denial of his Motion. See 28 U.S.C. § 2253(c) (1). “A certificate of appealability may
issue . . . only if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. at §2253(c) (2). The Defendant “must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282, (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484, (2000)), or
that “the issues presented were ‘adequate to deserve encouragement to proceed further,’” MillerEl v. Cockrell, 537 U.S. 322, 335-36, (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4
(1983).
When a district court dismisses a motion to vacate solely on procedural grounds, a
Certificate of Appealability will not issue unless the petitioner can demonstrate both “(1) ‘that
jurists of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right’ and (2) ‘that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’” Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001)
(quoting Slack, 529 U.S. at 484 (2000)). Petitioner has not made the required showing and the
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Court declines to issue a Certificate of Appealability. His Motion to Vacate will be dismissed
with prejudice. A separate Order shall be entered reflecting the opinion set out herein.
____________/s/_____________________
William M. Nickerson
Senior United States District Judge
June 11, 2013
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