Peck v. United States of America

Filing 5

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that no order to show cause shall issue as to respondent, because the instant 28 U.S.C. motion is time-barred. IT IS FURTHER ORDERED that movants motion pursuant to 28 U.S.C. Section 2255 is DENIED and DISMISSED as time-barred. IT IS FURTHER ORDERED that no certificate of appealability shall issue. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on September 17, 2015. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARRELL PECK,
Movant,

UNITED STATES OF AMERICA,
Respondent,

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No. 4:15CV961 ERW

MEMORANDUM AND ORDER
This matter is before the Court on movant’s response to the Order to Show Cause, as well
as his supplemental memorandum. [Doc. #3 and #4]. Having carefully reviewed movant’s
filings, the Court concludes that his arguments are without merit and that the instant action is
time-barred under 28 U.S.C. § 2255(f)(1).
Background
On February 25, 2013, movant pled guilty to two counts of possession of child
pornography. On August 1, 2013, the Court sentenced movant to 120 months’ imprisonment on
each of counts one and two, such terms to be served concurrently. Movant did not appeal.
The instant motion to vacate was placed in the prison mail system by movant on June 10,
2015. Because the motion was filed beyond the applicable statute of limitations, the Court
ordered movant to show cause why the motion should not be dismissed as time-barred. Movant
filed a timely response to the Order to Show Cause.
Discussion
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a motion to
vacate is subject to a one-year statute of limitations which runs 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)(1)-(4).
Because movant did not appeal the August 1, 2013 judgment, his conviction became final
fourteen (14) days later, when the period for filing a notice of appeal expired. See Moshier v.
United States, 402 F.3d 116, 118 (2nd Cir. 2005);Fed. R. App. Proc. 4(b)(1). As a result, the
one-year period of limitations under ' 2255 expired on August 15, 2013. The instant motion was
placed in the prison mail system by movant on June 10, 2015. Therefore, it is time-barred.
In his response briefs, movant asserts the following grounds for equitable tolling: (1)
there was an absence of probable cause to charge him; (2) his plea was involuntary; (3) he was
subjected to a due process violation during his criminal proceedings because this Court lacked
jurisdiction over his case; (4) he received ineffective assistance of counsel; and (5) he was
actually innocent of the crime for which he was charged.
The United States Court of Appeals for the Eighth Circuit has held that equitable tolling
is proper only when extraordinary circumstances beyond a prisoner=s control make it impossible
to file a petition on time or when the conduct of the respondent has lulled the movant into

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inaction. Jihad v. Hvass, 267 F.3d 803, 805-06 (8th Cir. 2001). Equitable tolling, however, is
Aan exceedingly narrow window of relief.@ Id. at 805. APro se status, lack of legal knowledge or
legal resources, confusion about or miscalculations of the limitations period, or the failure to
recognize the legal ramifications of actions taken in prior post-conviction proceedings are
inadequate to warrant equitable tolling.@ Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004);
Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (holding that Aeven in the case of an
unrepresented prisoner alleging a lack of legal knowledge or legal resources, equitable tolling
has not been warranted@).
Movant’s first three arguments for equitable tolling cannot sustain a basis for relief, as
these assertions are substantive arguments relative to his § 2255 motion and do not illustrate “an
extraordinary circumstance beyond movant’s control” making it impossible to file his § 2255
petition on time. See United States v. Martin, 408 F.3d 1089, 1092 (8th Cir. 2005). As such, the
Court will turn to movant’s claim that he should be provided equitable tolling on the basis of
ineffective assistance of counsel.
Movant claims that his attorney essentially abandoned him during his criminal case by
failing to provide “meaningful representation.” He asserts that he did not “explain” things in a
meaningful way and did not challenge his arrest or indictment. Movant also takes issue with his
plea deal, asserting that it was “unfavorable.”
Movant does not allege that the Government lulled him into inaction with regard to
filing his § 2255 petition late. Thus, the first question is whether extraordinary circumstances
beyond movant’s control precluded him from filing his motion. Despite his broad claims of
“ineffective assistance of counsel,” movant has not suggested that his attorney played some role

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in him missing the filing deadline.

Instead, movant’s complaints about his attorney’s

performance relate to an alleged poor performance during his criminal proceedings, not in his
post-judgment performance. Given that movant has not stated that his counsel interfered with
his ability to file his collateral proceedings, the Court cannot grant him equitable tolling on these
grounds.
Movant’s final ground for equitable tolling is that he is actually innocent of the criminal
charges. In McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), the United States Supreme Court held
that an actual innocence claim may qualify as an equitable exception gateway for federal habeas
review of a petition filed after the one-year statute of limitations period has expired.
The exception requires a petitioner to present a viable claim of actual innocence based on
new evidence and “‘must show that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.’” Id. at 1935 (quoting Schlup v. Delo, 513 U.S.
298, 327 (1995)). The Court noted the actual innocence gateway standard is demanding and
seldom met. Id. at 1928. “The gateway should open only when a petition presents evidence of
innocence so strong that a court cannot have confidence in the outcome of the trial unless the
court is also satisfied that the trial was free of non-harmless constitutional error.” Id. at 1936.
(internal quotation and citation omitted).
In order to avoid a dismissal of his untimely petition under the McQuiggin standard,
movant must establish that his alleged “new evidence” would more likely than not convince a
jury to acquit movant. 1 After reviewing movant’s arguments in his brief, the Court finds that
movant has not presented any “new evidence” in this instance. Instead, movant merely attempts
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A freestanding claim of actual innocence is not a recognized ground for federal habeas relief.

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to resurrect procedural arguments that were only available to him in the pretrial phase of his
criminal proceedings, attacking his arrest, the indictment and his plea in an attempt to seek
release from his confinement. Such arguments cannot form the basis for a McQuiggin actual
innocence gateway claim to federal habeas review, as they do not qualify as “new evidence”
sufficient to form the grounds for equitable tolling.
In light of the aforementioned, movant’s motion to vacate will be denied and dismissed
as time-barred. Additionally, no certificate of appealability shall issue.
Accordingly,
IT IS HEREBY ORDERED that no order to show cause shall issue as to respondent,
because the instant 28 U.S.C. motion is time-barred.
IT IS FURTHER ORDERED that movant’s motion pursuant to 28 U.S.C. § 2255 is
DENIED and DISMISSED as time-barred.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
An appropriate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 17th day of September, 2015.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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