years to discover that counsel had not filed a notice of appeal
and to discover that counsel's performance was allegedly
ineffective). Also, defendant was represented by multiple
counsel during this time period. See supra, n. 3. Defendant's
extensive legal representation undermines his theory that the
alleged deception of the government and Mr. Fox prevented him
from discovering these facts and exercising due diligence.
Defendant's conspiracy theory involving the government and Mr.
Fox simply does not ring true when defendant was represented by
multiple other lawyers. Given the many intervening years since
the sentencing of defendant and his extensive legal assistance,
the Court finds that the exercise of due diligence would have
revealed the facts supporting the claims presented many years
before the May 2000 date suggested by defendant.
In conclusion, the Court finds that defendant failed to
demonstrate that he filed the present motion within one year of
"the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence." Thus, because defendant does not meet the
requirements of paragraph four of § 2255, defendant's motion is
2. Equitable Tolling
In the event the Court finds that he failed to meet the
requirements of paragraph four of § 2255, defendant requests
that based "on the unique facts of this case, the Court should
extend the statute of limitations under the doctrine of
equitable tolling, to allow as timely the September 20, 2000
filing of the § 2255 motion." Def. Reply Memo., at 30.*fn8
The government responds that equitable tolling does not apply to
§ 2255 motions, and that even if it does, defendant has not
demonstrated circumstances warranting such relief.
The Court finds that Congress did not intend that § 2255
motions be subject to equitable tolling.*fn9 The intent of
Congress to prevent equitable tolling is indicated by the
specific provisions in § 2255 to control the statute of
limitations. See 18 U.S.C. § 2255 ¶ 6 at (2)-(4). The fact
that Congress chose to expressly enumerate the circumstances
that would start and stop the statute of limitations undermines
defendant's argument that Congress also chose to allow
non-specified means to toll the statute of limitations. It
appears that Congress did not intend for the courts to interpret
the statute as permitting other open-ended means of tolling the
statute of limitations. Thus, the Court finds that equitable
tolling does not apply to motions filed pursuant to § 2255.
However, even if § 2255 motions were subject to equitable
tolling, the present motion does not qualify. Equitable tolling
is to be used by the courts "only sparingly." Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d
435 (1990). Also, with respect to § 2255 motions, it is to be
applied only if "extraordinary circumstances beyond plaintiffs'
control made it impossible to file the claims on time."
Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.
1996). Courts have consistently rejected
equitable tolling of the statute of limitations for defendants
who: (1) filed their motions in a much shorter time period than
Mr. Pollard; (2) were not represented by counsel as Mr. Pollard
was and is; and (3) faced much higher obstacles than Mr. Pollard
in filing their motion. See Cicero, 214 F.3d at 201, 203-04
(equitable tolling request rejected even though pro se
defendant filed motion only three months late and his work was
interrupted because he was stabbed by a fellow inmate,
incarcerated in administrative segregation, and denied access to
his legal papers for over two months); United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (equitable
tolling not allowed even though defendant only filed motion one
day late and defense counsel's father had died two weeks before
the filing deadline), cert. denied, 531 U.S. 878, 121 S.Ct.
188, 148 L.Ed.2d 130 (2000); Fisher v. Johnson, 174 F.3d 710,
715-16 (5th Cir. 1999) (no equitable tolling allowed — despite
the fact that defendant was confined in psychiatric ward,
medicated, separated from his glasses and rendered legally blind
— because defendant had six months after release from ward to
file motion). Defendant cannot establish that "extraordinary
circumstances" beyond his control made it "impossible to file a
petition on time." See Cicero, 214 F.3d at 203.*fn10 The
Court finds it cannot extend the statute of limitations under
the doctrine of equitable tolling to allow as timely the
September 20, 2000, filing of the § 2255 motion of defendant.
In conclusion, the Court finds that the second motion of
defendant pursuant to § 2255 must be certified by a panel of the
appropriate Court of Appeals before this Court can consider it.
Thus, this Court must decline to entertain the motion at this
time. However, assuming arguendo, that the certification
requirements do not apply to defendant, this Court does find
that his motion must be dismissed because it falls outside the
statute of limitations.
An appropriate judgment accompanies this Memorandum Opinion.
For the reasons stated in the accompanying Memorandum Opinion
of even date, the Court finds that the motion of defendant for
resentencing pursuant to 28 U.S.C. § 2255 cannot be considered
and, thus, this Court must decline to entertain said motion.
However, assuming arguendo, that the certification requirements
do not apply to defendant, this Court finds that his motion must
be dismissed because it falls outside the statute of
Accordingly, it is this day ___ of August, 2001,
ORDERED the motion of defendant for resentencing be, and
hereby is, dismissed; and it is further
ORDERED that if the certification requirements do not apply to
defendant, the motion of defendant be, and hereby is,
dismissed because it falls outside of the Statute of