Talley v. United States of America

Filing 217

MEMORANDUM OPINION AND ORDER For the reasons set forth above, the Court Adopts the portion of the 215 Magistrate's PF&Rs which recommends that this Court Deny as untimely the petitioner's 202 Motion to Vacate, Set Aside, or Correct Sent ence; Grant the Government's 209 Motion to Deny the Petitioner's motion as Untimely; the Court also Denies the petitioner's request in his objections for an evidentiary hearing regarding his instant Motion because the facts are adequ ately presented in the materials before the Court, and thus such a hearing would not aid the decisional process; additionally the Court Denies a certificate of appealability. Signed by Judge Robert C. Chambers on 8/7/2014. (cc: attys; any unrepresented party) (skm)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

NORMAN L. TALLEY,
Petitioner,
v.

CIVIL ACTION NO. 3:13-01754
(CRIMINAL ACTION NO. 3:10-00038-01)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
This action was referred to the Honorable Cheryl A. Eifert, United States Magistrate
Judge, who has submitted her proposed findings of fact and recommendations for disposition
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). The Magistrate‟s Proposed Findings and
Recommendations (“PF&Rs”), ECF No. 215,1 were filed on April 8, 2014, and the petitioner‟s
objections to the PF&Rs, ECF No. 216, were filed on April 21, 2014.2
The Court has reviewed de novo those portions of the Magistrate‟s PF&Rs to which the
petitioner objects, and it finds that the petitioner‟s objections lack merit. For the reasons set forth
below, the Court ADOPTS the portion of the Magistrate‟s PF&Rs which recommends that this
Court DENY as untimely the petitioner‟s Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255, ECF No. 202, and GRANT the Government‟s Motion to Deny
[the Petitioner‟s Motion] as Untimely, ECF No. 209. The Court therefore does not rule upon the
petitioner‟s remaining objections. The Court also DENIES the petitioner‟s request in his
1

All ECF citations are derived from the underlying criminal action, No. 3:10-cr-00038-01.
Pursuant to the “prison mailbox rule,” “a pro se litigant‟s legal papers are considered filed upon „delivery to prison
authorities, not receipt by the clerk.‟” United States v. McNeill, 523 F. App‟x 979, 981 (4th Cir. 2013) (quoting
Houston v. Lack, 487 U.S. 266, 275 (1988)).
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objections for an evidentiary hearing regarding his instant Motion because the facts are
adequately presented in the materials before the Court, and thus such a hearing would not aid the
decisional process.
Additionally, the Court DENIES a certificate of appealability.
I.

Background

On November 2, 2010, after a two-day trial, a jury found petitioner, Norman L. Talley,
guilty of 1) conspiring to distribute 50 grams or more of cocaine base and a quantity of heroin, in
violation of 21 U.S.C. § 846, 2) aiding and abetting the possession with intent to distribute 50
grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, 3) aiding
and abetting the possession with intent to distribute a quantity of heroin, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2, and 4) being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). See ECF Nos. 2, 148, 150. On February 22, 2011, the
petitioner was sentenced to 210 months of imprisonment (to run concurrently on all counts), 8
years of supervised release, a $3,000 fine, and a $400 special assessment. ECF No. 170. On
February 24, 2011, the petitioner appealed his case to the Fourth Circuit Court of Appeals. ECF
No. 172. On October 11, 2011, the Fourth Circuit affirmed the petitioner‟s conviction, ECF Nos.
193-195, and on November 2, 2011, that court issued its formal mandate in the case. ECF No.
196.
On January 28, 2013, the petitioner filed the instant Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (“Habeas Petition”), ECF No. 202, and a Motion
for Extension of Time [to File a Memorandum of Law and an Affidavit in Support of the Habeas
Petition], ECF No. 203. The Magistrate granted the latter motion in a February 25, 2013, Order
which also required the petitioner to specifically address in his Memorandum “the reasons why

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he believes that his § 2255 petition is timely filed” and required the Government to file a
response to the Habeas Petition within thirty days after the petitioner filed his anticipated
Memorandum and Affidavit. ECF No. 206. The petitioner timely filed a Memorandum in
Support, ECF No. 207, on April 8, 2013, and an Affidavit in Support, ECF No. 208, on April 11,
2013. He addressed the timeliness of the instant Habeas Petition in both documents.
On May 1, 2013, the Government timely filed the instant Motion to Deny [the
Petitioner‟s Habeas Petition] as Untimely or, Alternatively, for an Order Directing [the
Petitioner‟s] Former Counsel to Provide Information Concerning [the Petitioner‟s] Claim of
Ineffective Assistance of Counsel and [Ordering] an Abeyance, ECF No. 209. On May 9, 2013,
the Magistrate granted the portion of the Government‟s Motion which sought an abeyance and
suspended the requirement that the Government file a response to the petitioner‟s instant Habeas
Petition until after the timeliness issue had been ruled upon. ECF No. 210. On May 29, 2013, the
petitioner timely filed his Reply to the Government‟s instant Motion. ECF No. 211.
II.

Timeliness

In her PF&Rs, the Magistrate found that the petitioner‟s instant Habeas Petition was
untimely and that he had failed to present extraordinary circumstances which warranted equitable
tolling of the requirement, under 28 U.S.C. § 2255(f), that he file his Petition within the one year
limitation period after the date on which his judgment of conviction became final. See PF&Rs at
4 n.2, 6. The Magistrate recommended, therefore, that this Court grant the Government‟s instant
Motion to dismiss the petitioner‟s instant Habeas Petition as untimely. Id. at 6, 25. However, the
Magistrate then went on to address—and find without merit—each of the six substantive grounds
that the petitioner raises in his Habeas Petition. See id. at 7-25. The Magistrate then
recommended that this Court deny the Habeas Petition. Id. at 25. In his timely-filed Objections,

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the petitioner specifically objects to each and every finding of the Magistrate, including her
finding that his instant Habeas Petition is untimely.
Pursuant to 28 U.S.C. § 2255(f), “[a] 1-year period of limitation shall apply to a [§ 2255]
motion.” That limitation period begins running from the latest of the following dates:
(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.
Id. “For the purpose of starting the clock on § 2255‟s one-year limitation period, . . . a judgment
of conviction becomes final when the time expires for filing a petition for certiorari contesting
the appellate court‟s affirmation of the conviction.” Clay v. United States, 537 U.S. 522, 525
(2003). “[A] petition for a writ of certiorari to review a judgment in any case, civil or criminal,
entered by . . . a United States court of appeals . . . is timely when it is filed with the Clerk of [the
U.S. Supreme] Court within 90 days after entry of the judgment.” Sup. Ct. R. 13(1). “The time to
file a petition for a writ of certiorari runs from the date of entry of the judgment . . . sought to be
reviewed, and not from the issuance date of the mandate . . . .” Id. at 13(3) (emphasis added).
Thus, when no petition for certiorari is filed in a case, a habeas petition under § 2255 must be
filed within one year and ninety days from the date of entry of judgment by the applicable court
of appeals.
No petition for certiorari was filed in this case, and judgment was entered by the Fourth
Circuit on October 11, 2011. See Notice J., ECF No. 195 (prominently noting the filing date of
October 11, 2011, and stating, “Judgment was entered on this date in accordance with Fed. R.
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App. P. 36.”). Thus, the petitioner‟s Habeas Petition was due by January 9, 2013, but it was not
filed until January 28, 2013—nineteen days later. The petitioner does not contest that his Habeas
Petition was filed after the limitation period; however, he argues that he is entitled to equitable
tolling of this period for two reasons: 1) his attorney advised him, in writing, that he could file a
petition for a writ of certiorari within ninety days from the Fourth Circuit‟s mandate, which was
issued on November 2, 2011, and would have made the deadline January 31, 2013, and 2) part of
the petitioner‟s left thumb was cut off in October 2012, so he was medicated, in pain, and
confined to an area of the prison with no access to legal materials or resources for twenty-five
days within the limitation period (from October 26, 2012, to November 19, 2012).
“[A] petitioner is entitled to equitable tolling 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 v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks
omitted). “The diligence required for equitable tolling purposes is reasonable diligence, not
maximum feasible diligence.” Id. at 653 (citations omitted) (internal quotation marks omitted).
Ordinarily, “a petitioner must bear the risk of attorney error” and “a garden variety claim of
excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline,
does not warrant equitable tolling.” Id. at 650-52 (citations omitted) (internal quotation marks
omitted). However, “the exercise of a court‟s equity powers must be made on a case-by-case
basis.” Id. at 649-50 (internal quotation marks omitted) (ellipses omitted).
Holland v. Florida, the seminal U.S. Supreme Court case regarding equitable tolling of
the one-year limitation period on habeas petitions, involved an attorney who was unaware of the
date on which the limitation period expired and who failed to file his client‟s habeas petition on
time, despite the petitioner‟s many letters repeatedly emphasizing the importance of doing so and

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identifying the applicable legal rules. Id. at 652. Further, the attorney failed to communicate with
his client for a period of years, despite the petitioner‟s pleas that he do so, and the attorney failed
to communicate to his client that the appeals court had decided his case, again despite the
petitioner‟s pleas for that information. Id. Multiple legal ethics teachers agreed that the attorney‟s
actions were in violation of various “fundamental canons of professional responsibility, which
require attorneys to perform reasonably competent legal work, to communicate with their clients,
to implement clients‟ reasonable requests, to keep their clients informed of key developments in
their cases, and never to abandon a client.” Id. at 652-53. The petitioner in that case was also
remarkably diligent:
[The petitioner] not only wrote his attorney numerous letters seeking crucial
information and providing direction; he also repeatedly contacted the state courts,
their clerks, and the . . . State Bar Association in an effort to have [his attorney]—
the central impediment to the pursuit of his legal remedy—removed from his
case. And, the very day that [the petitioner] discovered that his AEDPA clock had
expired due to [his attorney‟s] failings, [the petitioner] prepared his own habeas
petition pro se and promptly filed it with the District Court.
Id. at 653. The Court reversed and remanded the case for further proceedings in the lower courts
regarding whether the facts of the petitioner‟s case constituted extraordinary circumstances
sufficient to warrant equitable tolling of the limitation period applicable to his habeas petition.
See id. at 653-54.
Here, the petitioner compares the incorrect information his attorney gave him regarding
the date by which he must file a petition for a writ of certiorari to the situation in Holland. The
comparison in inapt. There is little evidence that the petitioner pursued his rights diligently. In a
letter dated November 23, 2011, the petitioner‟s counsel informed him that he would not be
filing a petition for a writ of certiorari on behalf of the petitioner and provided him with the
incorrect date by which such a petition must be filed. See ECF No. 216 at 13. The letter from the

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petitioner‟s attorney does not include any advice regarding the timing of filing a habeas petition;
it only addresses the filing a petition for a writ of certiorari. Though the petitioner filed the
instant Habeas Petition only nineteen days late—as opposed to years late—, he had more than a
year between his attorney‟s letter and the actual due date of the habeas petition in which to
inquire into the issue of when the habeas petition would be due.
Additionally, the petitioner‟s search in this regard need not have gone far. The Notice of
Judgment filed by the Fourth Circuit on October 11, 2011, in the petitioner‟s case explicitly
states:
Judgment was entered on this date in accordance with Fed. R. App. P. 36. Please
be advised of the following time periods:
PETITION FOR WRIT OF CERTIORARI: To be timely, a petition for
certiorari must be filed in the United States Supreme Court within 90 days of this
court’s entry of judgment. The time does not run from issuance of the mandate.
ECF No. 195 (bold type in original) (capitalization in original) (emphasis added). To the extent
the misinformation in the letter from the petitioner‟s attorney misled the petitioner, this clear
instruction from the Fourth Circuit directly contradicts that misinformation, such that the Notice
of Judgment should have at least prompted the petitioner to conduct extra research on his own.
The petitioner‟s twenty-five-day period of invalidity—beginning eleven months after the letter
from his attorney signaling that the petitioner was now the sole person working on his case and
ending nearly two months before the habeas petition was due—also does not affect the Court‟s
finding that the petitioner failed to pursue his rights diligently.
Moreover, the Court simply cannot find that the factual bases for petitioner‟s arguments
amount to an “extraordinary circumstance” which “stood in his way and prevented timely filing.”
Unfortunately, an attorney misinforming his client is not a rare occurrence, and more
importantly, the situation here appears to have merely been “a garden variety claim of excusable
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neglect,” which the U.S. Supreme Court has stated may not alone amount to an “extraordinary
circumstance.” Though also unlucky, the petitioner‟s physical injury during the fall of 2012 was
short-lived, given the long limitation period, and the circumstances surrounding the injury—the
fact that the petitioner was in pain and medicated, and given no access to legal materials or
resources—also cannot be described as “extraordinary” or as preventing timely filing. Indeed,
there is no indication that this period of invalidity actually affected the petitioner‟s plans
regarding when to file his Habeas Petition in any way. The petitioner‟s main argument regarding
his understanding that the due date was later, based upon the misinformation provided by his
attorney, undermines his argument that the period of invalidity had any effect whatsoever on
when he filed the instant Habeas Petition. See, e.g., Pet.‟s Reply Gov‟t‟s Mot. Deny [Pet.‟s] Mot.
Untimely at 3, ECF No. 211 (“[W]ithout such misadvisement [sic] Movant Talley‟s § 2255
Petition would have been timely filed.”). It appears that, injured or not, the petitioner was
working toward an incorrect deadline all along, without researching the accuracy of the deadline
itself.
Thus, equitable tolling does not apply to the limitation period within which the
petitioner‟s instant Habeas Petition had to be filed under 28 U.S.C. § 2255(f), and the Petition
must therefore be dismissed as untimely
III. Certificate of Appealability
The Court additionally has considered whether to grant a certificate of appealability from
this final Order denying as untimely the petitioner‟s Habeas Petition. See 28 U.S.C. § 2253(c).
Such a certificate will not be granted unless there is “a substantial showing of the denial of a
constitutional right.” Id. at § 2253(c)(2). The Supreme Court has clarified:
When the district court denies a habeas petition on procedural grounds without
reaching the prisoner‟s underlying constitutional claim, a [certificate of
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appealability] should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the petitioner‟s Habeas Petition is clearly
untimely, and jurists of reason would not find it debatable whether this Court is correct in its
ruling that equitable tolling does not apply. The Court thus concludes that the governing standard
is not satisfied in this case. Accordingly, the Court DENIES a certificate of appealability.
IV.

Conclusion

For the reasons set forth above, the Court ADOPTS the portion of the Magistrate‟s
PF&Rs which recommends that this Court DENY as untimely the petitioner‟s Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, ECF No. 202, and GRANT the
Government‟s Motion to Deny [the Petitioner‟s Motion] as Untimely, ECF No. 209. The Court
also DENIES the petitioner‟s request in his objections for an evidentiary hearing regarding his
instant Motion because the facts are adequately presented in the materials before the Court, and
thus such a hearing would not aid the decisional process.
Additionally, the Court DENIES a certificate of appealability.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to
counsel of record and any unrepresented parties.
ENTER:

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August 7, 2014