DORSEY v. UNITED STATES OF AMERICA
Filing
11
MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 4/19/18. (DD, ) N/M
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ANDREA DORSEY
Civ. No. 15-2294 (KM)
V.
UNITED STATES OF AMERICA
UNITED STATES OF AMERICA
Crim. No. 13-509 (KM)
V.
MEMORANDUM OPINION
Andrea DORSEY,
Defendant.
THIS MA’fl’ER comes before the Court upon a pro se petition to modify
sentence pursuant to 28 U.S.C. § 2255 (16cv2294 ECF no. 1), as well as a
motion under Fed. I?. Crim. p. 35 to correct the judgment (13cr509 ECF no. 68)
On March 24, 2014, I sentenced Ms. Dorsey to 87 months’ imprisonment
based on her plea of guilty to multiple bank robberies. (Crim. No. 13-509) The
sentence included “restitution in the total amount of $59,387.24.” (Id.,
Judgment, 13cr509 ECF no. 58, at p. 6) No appeal was taken.
On June 10, 2014, Ms. Dorsey filed a motion for relief from her
restitution obligations. (13cr509 ECF no. 61) This was denied by Memorandum
Opinion and Order filed on August 13, 2014 (13cr509 ECF no. 64).
On December 14, 2015, Ms. Dorsey filed a motion to correct the
judgment under Fed. R, Crim. p. 35. (13cr509 ECF no. 68) In it, Ms. Dorsey
noted that she pled guilty to three bank robberies, and that the sums stolen
amounted to approximately $44,200. She states that the actual restitution
awarded, totaling $59,387.24, must therefore have been a clerical error. This
motion was terminated in the criminal case by the clerk (Docket entry dated
8/26/2016). The reason is not clear, but it may have been terminated in favor
of this
§ 2255 motion, filed under a separate civil number. In an abundance of
caution, I will consider the Rule 36 motion in this opinion.
On April 19, 2016, Ms. Dorsey filed this
§ 2255 motion under Civil No.
16-2294. The motion asserts two grounds:
(a) that Ms. Dorsey’s Guidelines offense level was based on an
erroneous dollar loss amount, exposing her to a higher sentence of
imprisonment and denying her due process of law; and
(b) that counsel was ineffective in that he allowed her to be
sentenced based on an incorrect restitution amount.
I find that this
§ 2255 petition is untimely, and that equitable estoppel
does not extend the one-year limitations period. In the alternative, I consider
the merits of the motions and deny them.
§ 2255 motion
Under 28 U.S.C. § 2255(fl(1) a § 2255 petition must be filed within one
A.
Timeliness of
year after the judgment of conviction becomes final. In Ms. Dorsey’s case,
Judgment was entered on March 24, 2014. She did not file a notice of appeal.
The judgment therefore became final when the 14-day deadline to file a direct
appeal expired on April 7, 2014. See Fed. 1?. App. P. 4(b)(1); Kapral a United
States, 166 F.3d 565, 577 (3d Cir. 1999). The one-year statute of limitations in
§ 2255 therefore expired on April 7, 2015. This § 2255 petition was filed more
than one year after that deadline, on April 19, 2016.
On April 27, 2016, 1 entered a memorandum opinion and order to show
cause why the petition should not be dismissed as untimely. It directed Ms.
Dorsey to the relevant standard and explained what showing would be
required:
fashion, Ms. Dorsey asserts that her § 2255 motion is
In
timely because equitable tolling should be applied. She states that
she “was prevented from asserting her rights and counsel did not
cursory
2
exercise due diligence in preserving her right(s) in the claim of the
monetary amount that the Movant has disputed.” (Dkt. No. I at p.
13) For equitable tolling to apply, “[g]enerally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1)
that he has been pursuing his rights diligently; and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005) (citation omitted). “The diligence required
for equitable tolling purposes is reasonable diligence, not
maximum, extreme, or exceptional diligence.” Ross v. Varano, 712
F.3d 784, 799 (3d Cir. 2013) (citation omitted).
For equitable tolling to apply, Ms. Dorsey needs to explain with
specifics how she was prevented from asserting her rights and that
she has been pursuing her rights diligently. Her cursory
statements on equitable tolling as stated in her § 2255 motion are
insufficient. Therefore, this Court will order Ms. Dorsey to show
cause why her § 2255 motion should not be dismissed as
untimely. In any response that Ms. Dorsey may elect to file, she
should explain with specific details what extraordinary
circumstances stood in her way from pursuing her rights and the
ways she has been pursuing her rights diligently.
(16cv2294 ECF no. 2 at 2—3)
Ms. Dorsey responded that the facts supporting her claim could not have
been discovered through the exercise of due diligence within the one-year
limitations period, which should be equitably tolled. (16cv2294 ECF no. 3) That
argument is clearly inadequate. She challenges the calculation of the dollar
loss or restitution amount imposed in connection with sentencing. The
restitution amount was known to her on the date of sentencing, March 24,
2014. It was included on the face of the Judgment. Indeed, Ms. Dorsey twice
filed motions to vacate or modify her restitution obligation. See supra. She was
surely aware of that restitution obligation and could have filed a timely § 2255
challenge.
Ms. Dorsey also asserts that the deadline should be equitably tolled
because her former attorney was unresponsive. Here is her explanation. She
acknowledges that her first, pro se motion to reduce her restitution payments
was filed and denied within the limitations period, on August 13, 2014. Two
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months later, on October 8, 2014, she allegedly mailed a letter to her appointed
trial counsel, Anthony lacullo, Esq., “questioning the monetary amount that
she was been responsible for in restitution.” (16cv2294 ECF no. 3 at 3) On
October 23, 2014, she received a letter from Mr. lacullo, telling her to call and
discuss the matter. She attempted to phone lacullo, but did not get through.
There were other letters, the last one on December 30, 2014. (Id.)
There things remained for nearly a year. It was on December 15, 2015,
well beyond the one year limitations period for a
§
2255 motion, that Ms.
Dorsey filed her pro se Rule 36 motion to correct what she characterized as an
error in the restitution figure in the judgment. (13cr509 ECF no. 68) Ms.
Dorsey urges that the date she filed the Rule 36 motion, December 15, 2015,
should be treated as “the date in which the petitioner[] discovered with due
diligence that her rights afforded to her by the United States Constitution were
and are being violated.” (16cv2294 ECP no. 3 at 3)
Generally speaking, attorney negligence or malfeasance will not
constitute the kind of extraordinary circumstances that would justil5’ equitable
tolling. See Schlueter u. Vat-ncr, 384 F.3d 69, 76 (3d Cir. 2004) (even where
attorney misrepresented that he would be filing a petition, the defendant could
have learned that he had not done so before the limitations period expired). See
also Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (“In non-capital cases,
attorney error, miscalculation, inadequate research, or other mistakes have not
been found to rise to the ‘extraordinary’ circumstances required for equitable
tolling.”).’
More to the point, however, Ms. Dorsey’s conduct would still fail the
diligence test. As noted above, she knew the relevant facts as of the date of
sentencing in March 2014. By her own account, she believed the restitution
figure was incorrect as of late 2014, tried to contact her attorney about it, but
gave up trying as of December 30, 2014. At that time, there were still four
In entertaining the attorney-malfeasance theory, I assume arguendo that Mr.
lacullo was still her attorney at this point. There is no allegation or showing that his
appointment under the Criminal Justice Act extended to the filing of a § 2255 motion.
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months left in the limitations period. Ms. Dorsey was and is capable of
proceeding without an attorney, if she cannot afford one. She had already filed
one pro se motion relating to the restitution obligation. More than a year after
that first application was denied, she filed a second, pro se Rule 36 application
regarding the restitution obligation. Months after that, and more than a year
after the
§
2255 deadline had run, she filed this pro se
§
2255 application. And
she was aware that she was filing out of time, because the motion itself invokes
equitable tolling. (16cv2294 ECF no. 1 at 13)
For these reasons, the extraordinary remedy of equitable tolling is not
appropriate. Nevertheless, I briefly consider the merits of the
§
2255 motion, as
well as the Rule 36 motion, in the alternative.
B.
Loss Calculation for Sentencing Purposes
Ms. Dorsey argues that her Guidelines offense level was wrongly
calculated because the Court erred as to the restitution figure. Because the
court thought the restitution figure was $59,387.24, she says, it set the offense
level too high, resulting in a sentencing range of 87—108 months. Actually, she
says, the loss was $42,000, and the sentencing range should have been 57—60
months. She asks the court to reduce her sentence accordingly.
The first premise of the argument is simply incorrect. Ms. Dorsey’s
offense level, and her imprisonment range, were not calculated based on a loss
figure of $59,387.24. In fact, the sentencing court did exactly what Ms. Dorsey
is now saying it should have done—calculated the offense level based solely on
the amounts taken in the robberies (which added up to about $42,000, not
$59,000). Thus, the Financial Resources Credit Union robbery netted $20,339;
the Somerset Savings Bank robbery netted $14,691; and the Fulton Bank
robbery netted $6,928. The total amount of the robberies, then, was $41,958.
(PSI?
¶
37). The sentencing court used those lower figures, totaling about
$42,000, not the higher restitution figure, in calculating the offense level and
the imprisonment range.
The second premise of the argument is also incorrect. The use of the
actual dollar amounts taken in the robberies correctly yielded a range of 87—
0
108 months, not 57—60 months. Where Ms. Dorsey goes wrong seems to be in
the Guidelines calculation of the offense level for multiple counts. She pled
guilty to three bank robberies, not one. For multiple counts of bank robbery,
the offense level is not set by simply aggregating the amounts stolen (as would
be done if, for example, these were multiple counts of financial fraud). Rather,
the offense level for each bank robbery was calculated separately by applying
the appropriate base level with enhancements for, e.g., use of a firearm. Then
the multiple count rules were applied to arrive at a final, combined adjusted
offense level of 31. (PSR
guideline); U.S.S.G.
§
¶11
41—71) See U.S.S.G.
§
233.1 (bank robbery
3D 1.4 (multiple count adjustment).
There was no error in that calculation. The proper total offense level,
after reductions for acceptance of responsibility, was 28. Combined with a
Criminal History Category of II, that yielded a range of 87—108 months. I
sentenced Ms. Dorsey to 87 months, at the bottom of the range.
C.
Restitution
The amount of restitution did not, as Ms. Dorsey believes, affect the
amount of prison time imposed. That seems to be the thrust of her argument.
Nevertheless, I consider her argument that it was calculated incorrectly, if only
to dispose of the Rule 36 “clerical error” contentions.
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The restitution amount, says Ms. Dorsey, must consist of the amounts
taken in the robberies—approximately $42,000, as noted above. In entering a
restitution award of $59,387.24, she says, the court erred.
The basis for the award of restitution was not simply repayment to the
banks of the amounts taken in the robberies. It also included disability
payments to GD, a victim teller, of $4,877.52 and $12,551.72. (PSR
¶
37b)
Hence the restitution award was higher than the actual amounts stolen. The
discrepancy between the two figures was not an error.
As noted above, Ms. Dorsey filed a Rule 36 motion, which I have elected to
consider here, in the alternative. A motion to correct ajudgment under Fed. R. Crim.
P. 36 may be brought at any time, and is not subject to the § 2255 statute of
limitations. Such a motion is, however, narrowly confined to errors of a clerical nature.
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Thus, for purposes of the motion under Fed. 1?. Crim. p. 36, the
judgment contains no clerical error. Alternatively, for purposes of the
§ 2255
motion, counsel did not render deficient service, and no prejudice resulted. See
generally Strickland
ii.
Washington, 466 U.S. 668 (1984).
CONCLUSION
For the foregoing reasons, the
§ 2255 petition is denied and dismissed.
This Opinion shall be filed in both the criminal case (13cr509) and the separate
civil
§ 2255 case (16cv2292).
Dated: April 19, 2018
KE IN MCNULTY, U.S.D.J(
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