Webb v. United States of America

Filing 14

MEMORANDUM OF THE COURT. Signed by District Judge Aleta A. Trauger on 7/27/12. (xc:Pro se party by regular and certified mail.)(rd)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JOE EDWARD WEBB
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.

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No. 3:12-0398
Judge Trauger

M E M O R A N D U M
The

petitioner,

Victorville

Federal

proceeding

pro

Correctional

se,

is

an

Institution

inmate
in

at

the

Adelanto,

California. He brings this action pursuant to 28 U.S.C. § 2255
against the United States, asking the Court to vacate, set aside or
correct his sentence.
On January 15, 2010, the petitioner pled guilty to two counts
of

conspiracy

to

distribute

and

to

possess

with

intent

to

distribute cocaine. United States of America v. Joe Edward Webb,
Criminal No.3:09-00044 (M.D. Tenn.); Docket Entry No.50. He also
pled guilty to attempting to possess with intent to distribute 500
grams or more of cocaine. United States of America v. Joe Edward
Webb, Criminal No.3:10-00015 (M.D. Tenn.); Docket Entry No.9.
For the two conspiracy convictions, the petitioner received a
sentence of 240 months in prison, to be followed by ten years of

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supervised release. Criminal No.3:09-00044; Docket Entry No.74. For
the attempt to possess conviction, the petitioner was given a
concurrent sentence of 240 months in prison. Criminal No.3:1000015; Docket Entry No.33.
There was no direct appeal of the convictions taken by the
petitioner. However, on April 17, 2012, he filed the instant Motion
to Vacate, Set Aside or Correct Sentence (Docket Entry No.1).1 In
the

Motion,

the

petitioner

claims

that

he

was

convicted

in

violation of his right to the effective assistance of counsel. More
specifically, the petitioner alleges that his attorney made errors
during plea negotiations and sentencing.2
Upon its receipt, the Court conducted a preliminary review of
petitioner’s Motion and found that it stated a colorable claim for
relief. Accordingly, by an order (Docket Entry No.6) entered May
14, 2012, the United States Attorney for this judicial district was
directed to file an answer, plead or otherwise respond to the
Motion. Rule 4(b), Rules - - - § 2255 Cases.
Presently pending before the Court is the government’s Motion

1

A pleading from a prisoner is considered filed on the date
that it was given to prison officials for posting. Houston v.
Lack, 487 U.S. 266, 270 (1988). Thus, even though petitioner’s
Motion was received in the Clerk’s Office and stamped as filed on
April 23, 2012, the actual filing date for the purposes of a
timeliness analysis is April 17, 2012, the date on which the
petitioner signed the Motion and gave it to prison officials for
posting. See Docket Entry No.1 at pg.12.
2

The petitioner’s claims are set forth in a Memorandum
(Docket Entry No.2) that was filed with the §2255 Motion.
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to Dismiss (Docket Entry No.9), to which the petitioner has offered
an Objection (Docket Entry No.13) to the Motion.
The government opposes the petitioner’s Motion by contending
that it is untimely. The Antiterrorism and Effective Death Penalty
Act contains a one-year limitation period during which a § 2255
Motion to Vacate, Set Aside or Correct Sentence must be filed. This
limitation period begins to run from the latest of four (4) events
which include
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).
In this instance, the Court finds that the one year limitation
period began to run from the date that the petitioner’s convictions
became final. Judgment was entered against the petitioner on
January 7, 2011. His convictions became final fourteen days later

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on January 21, 2011, when the time for filing a direct appeal had
expired. Rule 4(b)(1)(A), Fed.R.App.P. Thus, the limitation period
for the filing of this action ran through January 21, 2012.
The instant § 2255 Motion was not filed until April 17, 2012,
almost three months after the limitation period had expired.
Accordingly, this action is untimely.3
The

period

of

limitation,

however,

does

not

act

as

a

jurisdictional bar. Therefore, the one year limitation period is
subject to equitable tolling in appropriate circumstances. Dunlap
v. United States, 250 F.3d 1001, 1004-1005 (6th Cir.), cert. denied,
534 U.S. 1057 (2001). In his Objection, the petitioner sets forth
two reasons why equitable tolling of the limitation period would be
appropriate. First, the petitioner claims that he is actually
innocent of the charges that led to his conviction. Docket Entry
No.13 at pg.4. Second, the petitioner attributes his late filing to
the ineffective assistance of counsel.
The doctrine of equitable tolling should be applied sparingly.
Dunlap, supra at pg.1008. The petitioner bears the burden of
demonstrating that he is entitled to an equitable tolling of the
limitation period. Id.; Keenan v. Bagley, 400 F.3d 417, 420 (6th
Cir.2005). To merit equitable tolling of the limitation period, the
petitioner

must

show

that

he

has

3

been

pursuing

his

rights

The petitioner does not dispute the fact that this action
was filed in an untimely manner. See Docket Entry No.13 at pg.3.
4

diligently and that some extraordinary circumstance stood in his
way. Pace v. DiGuglielmo, 544 U.S. 408,418 (2005).
The

Sixth

Circuit

has

held

that

a

petitioner’s

actual

innocence will support an equitable tolling of the limitation
period. Souter v. Jones, 395 F.3d 577, 599 (6th Cir.2005). To make
a showing of actual innocence, the petitioner must convince the
Court that it is more likely than not that no reasonable juror
would have found him guilty beyond a reasonable doubt. Id. at
pg.602.
The petitioner confessed his guilt to the charges in a plea
agreement. Criminal No.3:09-00044; Docket Entry No.72 at pg.9. He
later waived the right to challenge his guilt in a subsequent
appellate proceeding. Id. at pg.19. The petitioner has offered
nothing whatsoever to rebut the confession. From this, the Court
finds that the petitioner has failed to make a showing of actual
innocence sufficient to equitably toll the one year period of
limitation.
The petitioner also asserts that counsel’s ineffectiveness
should allow him to file an untimely Motion. More specifically, he
claims that his attorney was instructed to file an appeal of the
sentences but that his attorney neglected to do so.
As part of his plea agreement, petitioner waived the right “to
appeal any sentence within or below the guidelines range associated
with the Recommended Offense Level when combined with defendant’s

5

criminal history category as determined by the Court.” Id. The
petitioner

signed

the

plea

agreement

acknowledging

that

he

understood its provisions. Id. at pg.21. The petitioner does not
allege that his sentences were above the guidelines range. By
asking his attorney to file an appeal of the sentence, he was aware
that such an appeal was forbidden by the plea agreement. In fact,
the petitioner admits that “counsel tried to persuade me that I
couldn’t appeal”. Docket Entry No.13 at pg.12. It appears at first
blush, therefore, that counsel would not have been deficient for
failing to file an appeal that the petitioner had waived in a plea
agreement.
Nevertheless, in a recent opinion, the Sixth Circuit has held
to the contrary. An attorney is ineffective when he fails to file
a requested appeal even though, as part of a plea agreement, the
petitioner had partially waived his right to appeal. Robert Dan
Campbell v. United States of America, Appellate No.11-3233 (6th
Cir.; decided on 7/19/12). As a consequence, if the petitioner did
in fact instruct his attorney to file an appeal and counsel
neglected

to

do

so,

counsel’s

failure

may

have

caused

the

limitation period to run through no fault of the petitioner.
There is nothing in the record that seems to contradict the
petitioner’s assertion that he expressly instructed counsel to file
an

appeal

of

his

sentences,

although

the

government

has

not

conceded the point in its Motion to Dismiss. In such a situation,

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the Sixth Circuit has directed that an evidentiary hearing must be
conducted to determine if the petitioner did in fact express a
desire for an appeal as he now asserts. Campbell, supra at pg.9.
Accordingly, an order shall be entered referring this action
to the Magistrate Judge with instructions to conduct the requisite
evidentiary hearing.

____________________________
Aleta A. Trauger
United States District Judge

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