REDMAN v. USA

Filing 1

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Donetta W. Ambrose on 5/14/15. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES

)
) No. 10-233
)

v.
KEITH REDMAN

OPINION AND ORDER
SYNOPSIS
Before the Court is Defendant’s Motion to Vacate pursuant to 28 U.S.C. § 2255. In this
action, Defendant pleaded guilty to violating 21 U.S.C. § 846, the lesser included offense of one
Count of a superseding indictment. He was sentenced on March 20, 2012. He appealed, and the
Government responded by seeking to enforce the appellate waiver in Defendant’s plea
agreement. On September 20, 2012, the Court of Appeals issued an Order enforcing the waiver.
On February 27, 2015, Defendant filed the present Motion. For the following reasons, the
Motion will be denied as time-barred.
OPINION
I. APPLICABLE STANDARDS
A district court need not hold an evidentiary hearing on a Section 2255 motion if the
motion, files, and records show conclusively that the defendant is not entitled to relief. United
States v.Ritter, 93 Fed. Appx. 402 (3d Cir. 2004). Under these standards, a hearing is
unnecessary in this case, and the Motion will be disposed of on the record.
Relief is available under Section 2255 only under exceptional circumstances, when the
claimed errors of law are "a fundamental defect which inherently results in a complete
miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair

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procedure." Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L.Ed. 2d 417 (1962). "A
person seeking to vacate his conviction bears the burden of proof upon each ground presented for
relief." United States v. Keyes, No. 93-22-2, 1997 U.S. Dist. LEXIS 12109, at *2 (E. D. Pa. Aug.
11, 1997). Conclusory allegations are insufficient to support § 2255 relief. United States v.
Atkinson, No. 10-247, 2010 U.S. Dist. LEXIS 54812, at *2 (W.D. Pa. June 4, 2010).
Finally, a pro se pleading is held to less stringent standards than pleadings drafted by
attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 s. ct. 285, 429
U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct.
594, 30 L. Ed. 2d 652 (1972). Thus, a pro se habeas petition should be construed liberally. See
Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998). I have considered Defendant's Motion
according to these standards.
II. DEFENDANT’S MOTION
Defendant contends that he received misinformation impacting his decision to plead
guilty. More particularly, he avers that the Court, Government counsel, and defense counsel
misled him into believing that he qualified as a career offender, when in fact he did not. The
Government opposes the Motion as untimely, and contends that Defendant is otherwise not
entitled to relief.
Section 2255 imposes a one-year limitation period, which runs from the date on which
the judgment of conviction becomes final. 28 U.S.C. § 2255(f). In this case, Defendant was
sentenced on March 20, 2012. On September 20, 2012, the Court of Appeals issued an order
enforcing Defendant’s appellate waiver. Defendant did not file a writ of certiorari. Accordingly,
for purposes of § 2255(f)(1), the latest date that Defendant’s conviction could have become final
is ninety days after the Court of Appeals for the Third Circuit enforced the waiver. Kapral v.

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United States, 166 F.3d 565, 570-71 (3d Cir. 1999). This Motion was filed on February 27,
2015, and dated February 24, 2015. Both dates are long after December 19, 2013, when the oneyear limitation period expired. Exceptions to the bar may exist if the Government created an
impediment to filing the petition; the Supreme Court created a new, retroactively applicable
right; or that Defendant, exercising due diligence, could not have discovered key facts supporting
his claim. 28 U.S.C. § 2255(f).
Defendant has not alleged a Government impediment, a new right, or newly discovered
key facts. Because of the potential for harsh results occasioned by the limitations period,
however, I will consider whether equitable tolling applies. Equitable tolling may apply when a
defendant has “in some extraordinary way…been prevented from asserting his or her rights.”
Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998). Equitable tolling is a
remedy which should be invoked sparingly. United States v. Midgley, 142 F.3d 174, 179 (3d Cir.
1998). It "is proper only when the 'principles of equity would make [the] rigid application [of a
limitation period] unfair.'" Miller, 145 F.3d at 618. In addition, a defendant must demonstrate
that he exercised reasonable diligence in investigating and bringing his claims; excusable neglect
is not enough. Id. at 618-19.
Here, Defendant explains the time lag by stating that he “has diligently pursued his issue
contacting lawyers and studying case law” but was told that he had waived all his rights to
challenge his sentence. Defendant attaches as an exhibit a detailed, thoughtful, and thorough
letter dated August 7, 2013, from an attorney following up on his promise to assess potential
challenges to Defendant’s conviction and sentence. In that letter, counsel advised Defendant of
the time bar, in bold and underlined font, and warned him that he must file any Section 2255

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Motion no later than December 19, 2013. Under the circumstances, Defendant’s explanation for
filing his Motion in February, 2015, does not warrant equitable tolling of the limitations period.1
III. CERTIFICATE OF APPEALABILITY
Under 28 U.S.C.§ 2253(c)(2), a "certificate of appealability may issue only if the
applicant has made a substantial showing of the denial of a constitutional right." For the reasons
stated above, Defendant has not made such a showing. Therefore, a certificate of appealability
will not issue.
CONCLUSION
In sum, Defendant’s Motion is time-barred, and must be denied. No certificate of
appealability shall issue. An appropriate Order follows.
ORDER
AND NOW, this 14th day of May, 2015, it is hereby ORDERED, ADJUDGED, and
DECREED that Defendant’s Motion to Vacate is DENIED. No certificate of appealability shall
issue.
BY THE COURT:
/s/Donetta W. Ambrose
Donetta W. Ambrose
Senior Judge, U.S. District Court

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Neither the Government nor Defendant fully addresses the waiver of Defendant’s collateral attack rights attendant
to his guilty plea. I note, however, that such a waiver existed in this case. Although courts have acknowledged
ethical issues surrounding waivers of the right to collateral attack, such waivers continue to be enforced within this
Circuit. See, e.g., United States v. Grimes, 739 F. 3d 125 (3d Cir. 2014); United States v. Campbell, 2014 U.S. Dist.
LEXIS 109554 (W.D. Pa. Aug. 8, 2014) . Even if Defendant’s Motion were timely filed, the waiver would likely
bar his pursuit thereof.

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