United States District Court for the District of Columbia
April 26, 2004.
LORENZO J. BAYLOR, Petitioner,
UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING THE PETITIONER'S MOTION FOR RELIEF
This case comes before the court on the petitioner's motion for relief
from his drug-trafficking conviction pursuant to Federal Rule of
Criminal Procedure 35 or, in the alternative, 28 U.S.C. § 2255. The
petitioner claims that his conviction was unconstitutional because the
question of drug quantity was not submitted to the jury for determination
beyond a reasonable doubt. He also asserts that the sentencing judge
incorrectly sentenced him by taking into account acquittal conduct in
determining the sentencing guideline ranges. Because the petitioner has
neither met the jurisdictional requirement of Rule 35, nor timely filed
his section 2255 challenge under the applicable statute of limitations,
the court denies the petitioner's motion for relief. II. BACKGROUND
On November 1, 1994, a jury found the petitioner guilty of conspiracy
to distribute 50 grams or more of cocaine base, unlawful distribution of
five grams or more of cocaine base, and unlawful distribution of five
grams or more of cocaine base within 1000 feet of a school. Pet'r's Mot.
for Relief ("Pet'r's Mot.") at 1-2. Specifically, the evidence showed
that the petitioner supplied 21.431 grams of cocaine base to a dealer who
sold the narcotics to an undercover police officer. Id. at 5. Over the
defense's objection, when the case was submitted to the jury, the Judge
Gasch instructed the jurors that the actual amount of drugs involved was
not an issue for their consideration. Id. at 6.
Judge Gasch determined that the relevant amount of cocaine base for
purposes of sentencing was 110 grams. Id. at 8. This amount included
quantities involved in charges for which the jury acquitted the
petitioner. Id. Based on the sentencing guideline range, Judge Gasch
imposed a term of imprisonment of 240 months on each count to run
concurrently. Id. at 2.
The petitioner then appealed his conviction to the D.C. Circuit. The
circuit affirmed his convictions on the conspiracy and distribution
counts but remanded the case for resentencing in light of the district
court's "merger of the distribution counts with the schoolyard statute
drug possession counts." United States v. Baylor, 97 F.3d 542, 543 (D.C.
Cir. 1996). Upon remand, the case was reassigned to Judge Harris, who
issued an amended judgment on October 1, 1997, again sentencing the
defendant to 240 months on each count to run concurrently. Id. at 10. The
petitioner's counsel, however, did not receive a copy of the amended
judgment and failed to take further steps to check the record. Id. Two
years later, the petitioner's counsel contacted the court and learned of the amended judgment. Id. The petitioner's counsel
conveyed this information to the petitioner in a letter dated August 22,
2000. Id. at 11. Almost a year later, the petitioner filed the instant
A. Legal Standard for Relief Under Rule 35 and 28 U.S.C. § 2255
Federal Rule of Criminal Procedure 35*fn1 authorizes a court to
correct or reduce a sentence in three circumstances. Subsection (a)
authorizes a district court to correct a sentence that the court of
appeals has determined "to have been imposed in violation of law, to have
been imposed as a result of an incorrect application of the sentencing
guidelines, or to be unreasonable, upon remand of the case to the court."
United States v. Stiefel, 207 F.3d 256, 259 (5th Cir. 2000) (quoting
FED. R. CRIM. P. 35(a) (1998) (repealed 2002)). Under subsection (b),
upon "a motion by the Government made within one year after imposition of
the sentence," a court may "`reduce a sentence to reflect a defendant's
subsequent, substantial assistance.'" United States v. Blackwell,
81 F.3d 945, 948 (10th Cir. 1996) (quoting FED. R. CRIM. P. 35(b)).
Finally, subsection (c) allows a court to act within seven days of
imposing a sentence to correct an arithmetical or technical mistake, or
other clear error. Id. "Outside of these three circumstances, the Court
lacks the authority to review and/or correct lawfully imposed sentences."
United States v. Tolbert, 893 F. Supp. 1, 2 (D.D.C. 1995). While Rule 35 serves the narrow function of allowing correction of
technical errors in a sentence, 28 U.S.C. § 2255 addresses claims of
illegal sentences and is used as "a means of collateral attack upon the
proceedings that precede the sentence." 3 FED. PRAC. & PROC. CRIM.3d §
582. A petitioner may challenge the validity of his imposed sentence
under 28 U.S.C. § 2255. 28 U.S.C. § 2255; see also United States v.
Marshall, 440 F.2d 195, 200 (D.C. Cir. 1970) (MacKinnon, J., concurring
in part and dissenting in part) (noting that a petitioner may question
the validity of his sentence by filing a section 2255 motion before the
trial court); Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir. 1976) (stating
that a challenge to an imposed federal sentence falls under section
2255, while a challenge to a sentence executed by federal prison and
parole authorities comes under section 2241). Section 2255 authorizes the
sentencing court to discharge or resentence a prisoner if the court
concludes that it was without jurisdiction to impose the sentence, the
sentence was in excess of the maximum authorized by law, or the sentence
is otherwise subject to collateral attack. 28 U.S.C. § 2255; United
States v. Addonizio, 442 U.S. 178, 185 (1979) (citing United States v.
Hayman, 342 U.S. 205, 216-17 (1952)). A petitioner can collaterally
attack his sentence under section 2255 where the sentencing judge made an
"objectively ascertainable error." King v. Hoke, 825 F.2d 720, 724-25 (2d
Cir. 1987) (citing Addonizio, 442 U.S. at 187). Nevertheless, the
petitioner seeking to vacate his sentence shoulders the burden of
sustaining his contentions by a preponderance of the evidence. United
States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973); Wright v. United
States, 624 F.2d 557, 558 (5th Cir. 1980); United States v. DiCarlo,
575 F.2d 952, 954 (1st Cir. 1978); Crail v. United States, 430 F.2d 459,
460 (10th Cir. 1970); Miller v. United States, 261 F.2d 546, 547 (4th
Cir. 1958). Relief under section 2255 is an extraordinary remedy.
Addonizio, 442 U.S. at 184; United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992); United
States v. Hodges, 156 F. Supp. 313, 314 (D.D.C. 1957).
B. The Court Denies the Petitioner's Motion for Relief Under
As this case is not being heard upon a motion by the Government and
does not seek to correct a technical error, only Rule 35(a) would be
applicable. The court concludes, however, that subsection (a) does not
provide the defendant an avenue of relief because the case is not "upon
remand" from the court of appeals. FED. R. CRIM. P. 35(a); see also
Blackwell, 81 F.3d at 948 (deeming subsection (a) inapplicable where the
case was not on remand to the district court). Although the petitioner
did appeal his sentence and the D.C. Circuit did remand the case, the
district court disposed of the remanded case in 1997. Pet'r's Mot. at
9-10. Thus, the court's power to resentence the petitioner under Rule
35(a) expired when the remanded case concluded in 1997. Because the
petitioner's case does not fall within the parameters of Rule 35, the
court denies his the motion for relief on that basis.
C. The Court Denies the Petitioner's Motion for Relief Under
28 U.S.C. § 2255
1. The Petitioner Filed His Claim After the Expiration of the Statute
The court also denies the petitioner's motion for relief under
section 2255 because the one-year statute of limitations for filing a
section 2255 claim has expired. Before the passage of the Antiterrorism
and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner could
file a motion for relief at almost any time. United States v. Cicero,
214 F.3d 199, 200 (D.C. Cir. 2000). In contrast, the AEDPA imposed a
one-year statute of limitations for section 2255 motions. Id. The
one-year period runs from the latest of:
(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
Id. (quoting 28 U.S.C. § 2255). None of the statute's four approaches
brings the petitioner within the statute of limitations.
The first approach, measuring one year from the date which the judgment
became final, does not assist the petitioner. Section 2255 does not state
explicitly when a judgment becomes final, and the D.C. Circuit has not
addressed the issue of when the statute of limitations begins to run in
situations where the petitioner had not appealed the district court's
ruling. However, other circuits have found that the statute begins to run
on the date when the defendant can no longer appeal the case. See, e.g.,
Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004)
(concluding that a judgment that the defendant has not appealed to the
court of appeals becomes final once the time for filing an appeal
passes); United States v. Colvin, 204 F.3d 1221, 1225 (9th Cir. 2000)
(holding that when a court of appeals reverses a conviction or sentence
in part or in whole, and expressly remands the case to the district
court, the judgment does not become final until the district court enters
its amended judgment and the time for appealing that judgment expires).
This rationale is consistent with the Supreme Court's holding that, in
cases where a court of appeals has issued a judgment and no writ of
certiorari is filed, the decision becomes final for purposes of section
2255 on the date when the opportunity to file a writ of certiorari
expires. Clay v. United States, 537 U.S. 522 (2003). In this case, the
district court issued its amended judgment on October 1, 1997. The petitioner therefore
would have had to file his section 2255 motion by no later than October
10, 1998. The petitioner, however, did not file his motion until July 2,
2001, almost three years after the amended judgment became final. Thus,
the petitioner's claim is untimely under the first approach to
calculating the statute of limitations period.
The second approach also is inapplicable to the petitioner. If there is
a government-created obstacle to filing a motion, then the statute of
limitations period begins tolling when that obstacle is removed.
28 U.S.C. § 2255. In this case, the petitioner does not assert that any
such impediment existed. See generally Pet'r's Mot.
Under the third approach, the limitations period expires one year after
the Supreme Court recognizes and makes retroactive the right being
asserted by the petitioner. 28 U.S.C. § 2255. In this case, the
petitioner argues that the court should retroactively apply the right
recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000). Pet'r's Mot.
at 13-17. Even assuming arguendo that Apprendi does create a retroactive
right, the court still would deem the petitioner's motion untimely
because the Supreme Court decided Apprendi on June 26, 2000, and the
petitioner did not file his motion for relief until July 2, 2001, or seven
days after the statute of limitations expired.
Finally, the fourth approach to measuring the one-year statute of
limitations does not apply because the petitioner does not allege that
his motion is based on the discovery of new facts. 28 U.S.C. § 2255;
See generally Pet'r's Mot.
2. Equitable Tolling Does Not Apply to the Petitioner's Claim
Although the petitioner does not explicitly argue that the principle of
equitable tolling tolls the running of the statute of limitations, out of an abundance of
caution, the court considers this possibility. The D.C. Circuit has not
addressed whether equitable tolling applies in section 2255 cases.
Cicero, 214 F.3d at 200. The circuit has stated, however, that if
equitable tolling does apply to section 2255 petitions, it takes effect
only if "`extraordinary circumstances' beyond a prisoner's control make
it impossible to file a petition on time." Id. at 203 (citing Calderon
v. United States Dist. Court, 128 F.3d 1283, 1289 (9th Cir. 1997)).
Sitting on one's rights, lack of representation, and ignorance of the law
are not "extraordinary circumstances." Id. (finding no "extraordinary
circumstances" where a petitioner who, as a result of being stabbed,
spent five days in the hospital and an unspecified amount of time in
segregation with restricted library access) (citations omitted). Rather,
the circumstances must be such that it would be impossible for the
prisoner to file the petition on time. Id. Ignorance of the law does not
qualify as such a circumstance. Id. Instead, the stated justification
must be something akin to petitioner's counsel withdrawing from the case
and the successor counsel being unable to use the previous attorney's
work product. Id.
In the present case, Judge Harris issued the amended judgment in 1997.
Pet'r's Mot. at 11. Neither the petitioner nor his lawyer, however, were
made aware of the amended judgment before August 2000, at which point the
one-year statute of limitations had already expired. Id. Arguably, this
delay could be attributed to the petitioner's counsel for failing to
follow-up with the court at any time during the three years following the
remand. But even if counsel were at fault, this rationale would not
justify equitably tolling the one-year statute of limitations. See
Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (holding that even a
lawyer's mistake in calculating the limitations for filing a habeas
corpus petition did not toll AEDPA's one-year statute of limitations).
For all these reasons, the court denies the petitioner's motion for
relief. An order directing the parties in a manner consistent with this
Memorandum Opinion is separately and contemporaneously issued this 26th
day of April 2004.