Rice v. USA
Filing
16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 13 , DENYING 2255 MOTION (DKT. NO. 1 , AND DISMISSING CASE WITH PREJUDICE. The Court adopts the Magistrate Judge's 13 Report and Recommendation and denies, with prejudice the Petitioner's 1 Motion to Vacate, 2255. The Clerk is directed to enter a separate judgment order in this matter. Signed by District Judge Irene M. Keeley on 12/17/15. (To PS Petitioner via cert. mail)(mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALICE RICE,
Petitioner,
v.
//
CIVIL ACTION NO. 1:11CR43
CRIM. ACTION NO. 1:14CV97
(Judge Keeley)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 13], DENYING
§ 2255 MOTION [DKT. NO. 1], AND DISMISSING CASE WITH PREJUDICE
Pending before the Court is the Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence (Dkt. No. 1) filed by the
petitioner, Alice Rice (“Rice”).
Also pending is the Report and
Recommendation (“R&R”) of the Honorable James E. Seibert, United
States Magistrate Judge, recommending that Rice’s § 2255 motion be
denied as untimely (Dkt. No. 13). For the reasons that follow, the
Court ADOPTS the R&R, OVERRULES Rice’s objections, DENIES Rice’s
§ 2255 motion, and DISMISSES this case WITH PREJUDICE.
BACKGROUND1
On August 19, 2011, Rice pleaded guilty in this Court to one
count of bank fraud, in violation of 18 U.S.C. § 1344 (Case No.
1:11CR43, Dkt. No. 16).
1
On May 3, 2012, the Court sentenced Rice
All docket numbers, unless otherwise noted, refer to Case
No. 1:14CV97.
RICE V. UNITED STATES
1:14CV97
1:11CR43
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 13], DENYING
§ 2255 MOTION [DKT. NO. 1], AND DISMISSING CASE WITH PREJUDICE
to 57 months of incarceration, five years of supervised release,
$319,000.00 in restitution, and a $100 mandatory special assessment
(Case No. 1:11CR43, Dkt. No. 37).
Rice did not appeal.
On January 30, 2014, Rice filed a pro se motion seeking a
“disposition” in a criminal case in the Circuit Court of Marion
County, West Virginia (Case No. 1:11CR43, Dkt. No. 53). This Court
lacks jurisdiction over any state court criminal matters and
therefore DENIES Rice’s pro se motion.
On June 9, 2014, Rice filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 (Dkt. No. 1).
She
filed her court-approved form on June 24, 2014 (Dkt. No. 5),
following which Magistrate Judge Seibert issued a Hill v. Braxton
notice, notifying Rice that her case may be dismissed as untimely
(Dkt. No. 6).
On August 14, 2014, Rice responded, contending that
the Court should toll the one-year statute of limitations due to
the “extraordinary circumstance” of the law library at her prison
not having the most current cases from the Supreme Court of the
United States (Dkt. No. 12).
On March 3, 2015, Magistrate Judge Seibert issued his R&R,
recommending that the Court deny Rice’s petition as untimely and
2
RICE V. UNITED STATES
1:14CV97
1:11CR43
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 13], DENYING
§ 2255 MOTION [DKT. NO. 1], AND DISMISSING CASE WITH PREJUDICE
dismiss the case with prejudice (Dkt. No. 13).
Rice filed her
objections to the R&R on March 19, 2015 (Dkt. No. 15).2
LEGAL STANDARD
Title 28 U.S.C. § 2255(a) permits federal prisoners, who are
in custody, to assert the right to be released if “the sentence was
imposed in violation of the Constitution or laws of the United
States,” if “the court was without jurisdiction to impose such
sentence,” or if “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.”
A petitioner bears the burden of proving any of these grounds by a
preponderance of the evidence.
See Miller v. United States, 261
F.2d 546, 547 (4th Cir. 1958).
Importantly, a one-year limitation period applies to actions
brought under § 2255.
28 U.S.C. § 2255(f).
The limitation period
begins to run from the latest of the following:
2
When
reviewing
a
magistrate
judge’s
report
and
recommendation made pursuant to 28 U.S.C. § 636, the court must
review de novo only the portion to which an objection is timely
made. 28 U.S.C. § 636(b)(1)(C). When no objections to the R&R are
made, a magistrate judge's findings and recommendation will be
upheld unless they are “clearly erroneous.” See Webb v. Califano,
468 F.Supp. 825 (E.D. Cal. 1979). Because Rice objected to the
conclusions in the R&R, the Court will review the same de novo.
3
RICE V. UNITED STATES
1:14CV97
1:11CR43
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 13], DENYING
§ 2255 MOTION [DKT. NO. 1], AND DISMISSING CASE WITH PREJUDICE
(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).
DISCUSSION
As
§
an
initial
2255(f)(1).
matter,
After
the
Rice’s
Court
motion
entered
is
untimely
Rice’s
under
Judgment
and
Commitment Order on May 11, 2012 (Case No. 1:11CR43, Dkt. No. 37),
Rice did not file an appeal. Her conviction therefore became final
fourteen
days
4(b)(1)(A)(i).
later,
on
May
25,
2012.
Fed.
R.
App.
P.
She did not file this suit until June 9, 2014, one
year and fifteen days after the one-year limitation period had
expired.
Rice does not deny this timeline, but contends that her
petition is timely under § 2255(f)(3), citing to Lafler v. Cooper,
4
RICE V. UNITED STATES
1:14CV97
1:11CR43
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 13], DENYING
§ 2255 MOTION [DKT. NO. 1], AND DISMISSING CASE WITH PREJUDICE
123 S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012)
(Dkt. No. 1 at 2).
In Lafler, which was decided on March 21, 2012,
the Supreme Court found that counsel was ineffective when he
advised the defendant to reject a plea offer on the grounds that
the defendant could not be convicted at trial.
123 S.Ct. at 1384.
In Frye, also decided on March 21, 2012, the Supreme Court held
that the right to effective assistance of counsel extended to
consideration of lapsed or rejected plea offers, and that counsel
was obligated to communicate plea offers to the defendant.
132
S.Ct. at 1408-09.
Setting aside the question of whether the Supreme Court has
found Lafler and Frye to be retroactively applicable, Rice’s
motion, filed on June 9, 2014, was still untimely by more than one
year. 28 U.S.C. § 2255(f)(3); Dodd v. United States, 545 U.S. 353,
358-59 (2005) (holding that the one-year limitation period for
filing a § 2255 motion based on a newly recognized right ran from
the date on which the Supreme Court initially recognized the right,
and not from the date on which the right asserted was made
retroactively applicable).
5
RICE V. UNITED STATES
1:14CV97
1:11CR43
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 13], DENYING
§ 2255 MOTION [DKT. NO. 1], AND DISMISSING CASE WITH PREJUDICE
Rice argues that the Court should equitably toll the one-year
limitation period due to “extraordinary circumstances” because the
Federal Prison Camp Alderson, where she is incarcerated, did not
update its law library, and therefore lacked access to relevant
case law, including Lafler and Frye, to conduct thorough research
(Dkt. No. 12 at 3).
Equitable tolling is only available “in those rare instances”
where,
due
to
circumstances
outside
of
the
petitioner’s
own
conduct, “it would be unconscionable to enforce the limitation
period against the [petitioner] and gross injustice would result.”
United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (quoting
Rouse
v.
Lee,
339
F.3d
238,
(quotation marks omitted)).
246
(4th
Cir.
2003)
(en
banc)
An otherwise time-barred petitioner
must establish the following to be entitled to equitable tolling:
(1) extraordinary circumstances; (2) beyond his control or external
to his conduct; (3) that prevented him from timely filing.
Id.
Equitable tolling is generally reserved for instances where the
wrongful conduct of the opposing party prevented the petitioner
from filing a petition, or extraordinary circumstances beyond the
petitioner’s control made it impossible to file a timely petition.
6
RICE V. UNITED STATES
1:14CV97
1:11CR43
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 13], DENYING
§ 2255 MOTION [DKT. NO. 1], AND DISMISSING CASE WITH PREJUDICE
United States v. Anderson, No. 04-0353, 2012 WL 1594156, at *2
(D.S.C. May 7, 2012) (quoting Harris v. Hutchinson, 209 F.3d 325,
330 (4th Cir. 2000)).
In this case, Magistrate Judge Seibert found insufficient
Rice’s “general, conclusory assertion” that Lafler and Frye were
inaccessible during the one-year limitation period (Dkt. No. 13 at
6).
He further found that neither case provided support that was
not otherwise already available.
Id.
The Court agrees.
Lafler
and Frye were both decided on March 21, 2012, before the one-year
limitation period began to run on May 25, 2012.
Rice has failed to
provide specific evidence of the length of time those cases were
unavailable, what steps, if any, she took to research alternative
case law, or if she asked for assistance.
Furthermore, even a cursory reading of Frye establishes that
the right to effective assistance of counsel has long applied to
certain pre-trial proceedings.
Frye, 132 S.Ct. at 1405 (citing
Argersinger v. Hamlin, 407 U.S. 25 (1972) (extending the right to
guilty pleas); Massiah v. United States, 377 U.S. 201 (1964) (postindictment interrogations); Hamilton v. Alabama, 368 U.S. 52 (1961)
(arraignments)).
Rice could have easily relied on these decisions
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RICE V. UNITED STATES
1:14CV97
1:11CR43
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 13], DENYING
§ 2255 MOTION [DKT. NO. 1], AND DISMISSING CASE WITH PREJUDICE
to construct her argument that counsel was ineffective for failing
to adequately advise her before she pleaded guilty.
The law
library’s failure to provide Rice with these two cases hardly rises
to the level of “extraordinary circumstances” contemplated by the
equitable tolling rule. See Rouse, 339 F.3d at 246 (“[R]arely will
circumstances warrant equitable tolling”).
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to
the
applicant”
in
such
cases.
If
the
court
denies
the
certificate, “the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of
Appellate Procedure 22.”
28 U.S.C. foll. § 2255(a).
The Court finds it inappropriate to issue a certificate of
appealability
in
this
matter
because
Rice
has
not
made
a
“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2).
demonstrating
that
A petitioner satisfies this standard by
reasonable
jurists
would
find
that
any
assessment of the constitutional claims by the district court is
8
RICE V. UNITED STATES
1:14CV97
1:11CR43
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 13], DENYING
§ 2255 MOTION [DKT. NO. 1], AND DISMISSING CASE WITH PREJUDICE
debatable or wrong, and that any dispositive procedural ruling by
the district court is likewise debatable.
Cockrell, 537 U.S. 322, 336–38 (2003).
See
Miller–El v.
Upon review of the record,
the Court concludes that Rice has failed to make the requisite
showing, and DENIES a certificate of appealability.
CONCLUSION
For the reasons discussed, the Court ADOPTS the R&R (Dkt. No.
13), DENIES Rice’s motion for a disposition (Case No. 1:11CR43,
Dkt. No. 53), OVERRULES Rice’s objections (Dkt. No. 15), DENIES
Rice’s § 2255 motion (Dkt. No. 1), and DISMISSES this case WITH
PREJUDICE.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, certified mail,
return receipt requested, to enter a separate judgment order, and
to remove this case from the active docket.
DATED:
December 17, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
9
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