Easton v. USA

Filing 6

ORDER dismissing Motion to Vacate, Set Aside or Correct Sentence (2255); granting 4 Motion to Dismiss. Court declines to issue a Certificate of Appealability. Signed by District Judge Max O. Cogburn, Jr on 9/29/2014. (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00372-MOC
KENT DOUGLAS EASTON,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the court on the respondent’s Motion to Dismiss Petition as
Untimely (#4). Respondent argues that the petition, filed some two years after the judgment in
this case became final, is time barred, that no exception applies under the statute, and that
equitable tolling is inappropriate in this case. Petitioner, represented by counsel, has filed a
timely Reply (#5) arguing that it would be inequitable not to toll the statute of limitations.
I.
On March 16, 2011, petitioner was charged with two counts of transporting child
pornography in violation of 18 U.S.C. § 2252(a)(1) and one count of possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B). United States v. Easton, 3:11CR82
(W.D.N.C. 2011) (Indictment (#1)). Petitioner retained Attorney Dale Morrison to represent him
on the charges and some six months later, petitioner entered into a written plea with the
government of guilty to Count One of the Bill of Indictment.
In that agreement, the parties agreed that petitioner’s adjusted offense level should be 36,
which included a base offense level of 22, a two-level enhancement for the material involving a
prepubescent minor, a five-level enhancement for distribution involving receipt of a thing of

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value, a two-level enhancement for use of a computer, a five-level enhancement for involving
more than 600 images, and a three-level reduction for acceptance of responsibility. The
government agreed to dismiss Counts Two and Three and to recommend a sentence at the lowend of the applicable guideline range. In exchange, petitioner agreed not to seek a sentence
outside of the guideline range. Petitioner also agreed to waive his rights to appeal or collaterally
attack his conviction or sentence, except for claims of ineffective assistance of counsel or
prosecutorial misconduct.
Consistent with the Plea Agreement, the Presentence Report provided a Total Offense
Level of 33, a Criminal History Category of I, and an Advisory Guidelines Range of 135 to 168
months. This court sentenced petitioner to 135 months imprisonment, which was a sentence of
imprisonment at the bottom of the guidelines range. Petitioner did not file a direct appeal,
making the Judgment final when his right to file a notice of direct appeal expired, which was 14
days after this court entered Judgment on May 17, 2012.
II.
The Petition was received by the court on July 7, 2014; however, it appears that petitioner
may have given the Petition to prison officials for mailing not earlier than June 26, 2014, which
appears to be the date he signed the Petition. Even using such earlier date as the date of filing,
the Petition has been submitted to the court more than two years after his judgment became final.
See 28 U.S.C. § 2255(f)
In his Reply, petitioner concedes his Petition is untimely, but argues it should be
equitably tolled. Inasmuch as the AEDPA's “limitations provisions ... do not speak in
jurisdictional terms or refer in any way to the jurisdiction of district courts ... § 2255's limitations
period is subject to equitable modifications such as tolling.” United States v. Prescott, 221 F.3d

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686, 688 (4th Cir. 2000).

Counsel for petitioner argues that his time for filing should be

equitably tolled based on misconduct by his trial counsel:
[u]nlike Whitesides, Petitioner Easton’s claim presents a question of constitutional
magnitude. Easton’s point — reduced to its simplest form — to the Government’s
dismissal motion is that his attorney misadvised him on whether he could seek
review of his sentence on direct appeal or on Section 2255's habeas corpus. The
nuances of the form of advice given, or not given, petitioner Easton by his thenattorney, raise the very concern that both Holland and Whitesides raise about
mechanical application of procedural rules. In view of the factual allegations
presented by Petitioner Easton in his petition, it could be argued that his attorney
abandoned him. Such a conclusion, however, can be reached for judicial
determination only after consideration of the factual nuances.
Reply (#5) at 5-6. Review of the petition reveals, however, that petitioner is not, as counsel
suggests, contending that “his attorney misadvised him on whether he could seek review of his
sentence on direct appeal,” id., but is instead contending that counsel was “ineffective in
advising movant not to file a direct appeal … by advising movant no grounds existed.” Petition
(#1) at 6. Petitioner went on to explain that he “was informed that only two grounds for appeal
were legally possible, and that neither ground existed.”

Id. The difference is subtle, but

important, and what is missing - a request that counsel file an appeal that was ignored - is
critical, as will be discussedbelow.
III.
The plausible factual allegations of the petition do not support application of equitable
tolling under Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549 (2010). A petitioner is entitled to
the equitable tolling of his post-conviction motion 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, 130 S.Ct. at 2562.

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A.
First, there is no evidence that petitioner has done anything in the last two years to seek
any sort of review of this court’s Judgment.
B.
Second, while the court is not privy to the conversations petitioner may have had with his
attorney after imposition of the sentence or in the 14 days following entry of Judgment, this court
went to some efforts to advise petitioner of not only the rights he was waiving as part of the plea,
but of the fact that even under the plea, he retained certain rights to challenge the court’s
Judgment by direct appeal:
THE COURT:
Now, Mr. Easton, subject to any waivers that you have in your plea
agreement, you have a right to appeal your conviction and this sentence to the
Fourth Circuit Court of Appeals. Any notice of appeal must be filed within 14
days from the entry of this judgment. If you're unable to pay for the cost of an
appeal, you may apply for leave to appeal at no cost to you. If you so request the
clerk of court will prepare and file a notice of appeal on your behalf. In addition,
if you can't afford counsel to assist you in this appeal, one will be appointed at
government expense.
I would recommend you speak to your lawyer about whether you need to
exercise those appellate rights in this particular instance, that being there may be
waivers in your plea agreement, whatever, with regard to some of that. The basic
plea agreements do contain certain areas that you still would be able to appeal if
you chose.
Do you understand your appellate rights as the court has explained them to
you?
THE DEFENDANT:
Yes, sir.
Sentencing Transcript (#32) at 40-41.

The court takes notice, as it did at sentencing, of

petitioner’s educational background, which includes two years of college at the University of
South Carolina at Sumter. PSR (#22) at 11.

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In Holland, petitioner sent multiple letters to his attorney requesting that he file a habeas
petition which went unheeded and it was apparent his attorney was under a mistaken belief as to
the applicable statute of limitations. Here, there is nothing in the petition or the Reply to suggest
that petitioner asked his trial attorney to file an appeal and that such a request was ignored. The
court has searched the petition to determine whether any circumstance or combination of
circumstances would warrant application of the tolling provision. Petitioner has not shown that
his failure to earlier file was the product of an “extraordinary circumstance” or that failing to
equitably toll the deadline would result in an “unconscionable” or “gross injustice.” See Minter
v. Beck, 230 F.3d 663, 666-67 (4th Cir. 2000).
C.
In his first contention, petitioner does not claim actual innocence of the offense or that the
court committed a sentencing error of constitutional magnitude. Rather, petitioner appears to
assert that he could have gotten a “better deal” if he had simply pled straight up to all counts of
the indictment and asked for a variance. Such argument is pure speculation as a “better deal”
would have been dependent on all the stars aligning in petitioner’s favor at every turn, including:
prevailing on exclusion of enhancements he conceded; the chance that the government would not
have sought additional or greater enhancements; that the non-dismissed counts would have had
no impact on his sentence; that the government would not have sought a high-end sentence or
even an upward departure; or that the government would not have challenged his expert at
sentencing (as it has done in other cases). “Movant's speculation that he might have gotten a
better deal, however, is not grounds to grant his § 2255 petition.” Burtchett v. United States,
2012 WL 2577521, *5 (W.D.Mo. July 3, 2012).

For there to be any injustice in these

circumstance in not tolling the statute of limitations, it is petitioner’s burden to forecast some

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plausible evidence that “there is a reasonable probability that, but for counsel's errors, he would
not have pleaded guilty [to written agreement with the government] and would have insisted on
… [pleading straight up].” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
While there is no constitutional right for a defendant to enter into a plea agreement, see
Weatherford v. Bursey, 429 U.S. 545, 561 (1977), and the decision to initiate plea negotiations is
ordinarily a strategic decision within the purview of defense counsel, Hawkman v. Parratt, 661
F.2d 1161, 1171 (8th Cir. 1981), counsel is still required to be a “reasonably effective advocate”
regarding the decision to seek a plea bargain. Brown v. Doe, 2 F.3d 1236, 1246 (2d Cir. 1993).
Although the Supreme Court has clearly recognized the right to “effective counsel during plea
negotiations,” Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012) (see also Lafler v. Cooper, 132
S. Ct. 1376, 1384 (2012)), that right does not encompass “buyer’s remorse” or the doctrine of
“do overs.” Reading contention one as a Lafler/Frye claim of ineffective assistance of counsel in
the plea negotiation process, neither decision could be read as recognizing a Sixth Amendment
claim where a defendant merely speculates that he could have gotten a better deal if counsel had
not negotiated a plea. If that were the case, there would be no finality as to any Judgment as
every decision to take a plea would then be subject to open-ended collateral review based on
subjective beliefs.
D.
In his second contention, petitioner alleges that counsel was ineffective in advising him
not to file an appeal because he had no “grounds for an appeal.” Petitioner appears to use the
term “grounds” interchangeably to mean (1) avenues for appeal left open under the plea
agreement and (2) the merits of an appeal. Read in a light most favorable to petitioner, he does

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not allege that counsel failed to file a requested appeal, but takes issue with counsel’s advice that
any appeal would be meritless.
“The issue is thus the quality of counsel's advice, which requires determining whether
there was any merit to the issues petitioner claims his counsel should have raised on direct
appeal.” Steaveson v. Hargett, 1998 WL 658353, *2 (10th Cir. Sept. 15, 1998). Petitioner does
not, however, advise the court as to what misadvice he received concerning the merits of any
appeal. Indeed, only two avenues were open for appeal: ineffective assistance of counsel and
prosecutorial misconduct. Review of the record in the underlying action reveals that petitioner’s
attorney negotiated a favorable plea that ultimately netted a bottom-of-the-guidelines sentence
and dismissal of two child pornography charges. Further, counsel successfully made several
objections to the draft Presentence Report, all of which were accepted and incorporated into the
Final PSR. While some of the issues were minor, counsel was effective in getting Dr. Tyson’s
report into the PSR, which greatly impacted this court’s decision to give a bottom-of-theguidelines sentence.

At sentencing, counsel made an effective argument covering five

transcribed pages as to why the court should go to the bottom of the advisory guidelines. He
then marshalled other evidence including live witnesses, which ultimately resulted in the
following concession from the government: “based on the plea agreement, we have a joint
recommendation of 135 months. And based on what Mr. Morrison said, I think it's justifiable
from his end.” Clearly, counsel was highly effective. As to prosecutorial misconduct, there is
not even a suggestion of any misconduct by the government.
While it would be ineffective assistance of counsel for an attorney to refuse to file a
notice of appeal when requested to do so by a client, it is not ineffective for an attorney to
counsel a defendant that an appeal would be meritless when, in fact, it would have been

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meritless. Thus, the court finds no allegations that would suggest a “gross injustice,” or, for that
matter, any injustice would occur if the statute of limitations was not equitably tolled.
E.
In his third contention, petitioner contends that his trial attorney failed to advise him
concerning the deadlines for filing a Section 2255 action. A trial attorney is under no obligation
to advise a client concerning Section 2255 filing deadlines. Pennsylvania v. Finley, 481 U.S.
551, 555 (1987) (finding no right to counsel on collateral attacks to a conviction); c.f. Roe v.
Flores-Ortega, 528 U.S. 470, 480 (2000) (finding duty of counsel to file a direct appeal when
requested to do so by client). This claim is patently meritless and as such the operation of the
statute of limitations does result in any gross injustice.
IV.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, this court declines to
issue a certificate of appealability as petitioner has not made a substantial showing of a denial of
a constitutional right. 28 U.S.C. § 2253(c)(2); Miller -El v. Cockrell, 537 U.S. 322, 336-38
(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the constitutional claims debatable or wrong); Slack v.
McDaniel, 529 U.S. 473, 484–85 (2000) (in order to satisfy § 2253(c) when court denies relief
on procedural grounds, a petitioner must demonstrate both that the dispositive procedural ruling
is debatable, and that the petition states a debatable claim of the denial of a constitutional right).

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ORDER
IT IS, THEREFORE, ORDERED that respondent’s Motion to Dismiss Petition as
Untimely (#4) is GRANTED, this action is DISMISSED, and a certificate of appeal is
DENIED.

Signed: September 29, 2014

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