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United States v. Rice

United States District Court, District of Columbia

January 5, 2017

UNITED STATES OF AMERICA
v.
ANTHONY RICE, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge

         Anthony Rice, the defendant in this criminal case, was convicted of one count of conspiracy to import one kilogram or more of heroin and five kilograms or more of cocaine, and one count of conspiracy to distribute and possession with intent to distribute one kilogram or more of heroin, five kilograms or more of cocaine, and fifty grams or more cocaine base. Motion to Vacate, Set Aside, or Correct Sentence (“Def.'s § 2255 Mot.”) ¶ 2. The Court sentenced the defendant to a twenty-year term of incarceration on the first count and to one life sentence on the second count, to be served concurrently. Id. Currently before the Court is the defendant's § 2255 motion and the United State[s'] Motion to Dismiss Defendant's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“Gov't's Mot. to Dismiss”). Upon careful consideration of the parties' submissions[1] and the entire record in this case, the Court concludes for the following reasons that it must grant the government's motion to dismiss the defendant's § 2255 motion on timeliness grounds.

         I. BACKGROUND

         On October 7, 2003, a federal grand jury charged the defendant and eighteen other codefendants with one count of conspiracy to import one kilogram or more of heroin and five kilograms or more of cocaine and one count of conspiracy to distribute and possession with intent to distribute one kilogram or more of heroin, five kilograms or more of cocaine, and fifty grams or more cocaine base. JA at 79-85. The Court conducted a jury trial in January and February 2006, id. at 57-64 (docket entries indicating dates on which jury trial was held), and the jury convicted the defendant of both conspiracy counts, id. at 431-35. On November 7, 2006, the Court sentenced the defendant to a twenty-year term of incarceration on the first count and life without the possibility of parole on the second count. Id. at 433.[2]

         The defendant appealed his convictions, and they were affirmed by the District of Columbia Circuit on April 1, 2014. Gov't's Mot. to Dismiss, Exhibit (“Ex.”) A (United States Court of Appeals for the District of Columbia Circuit Per Curiam Judgment dated Apr. 1, 2014). The defendant then filed a petition for a writ of certiorari with the Supreme Court, which was denied on November 10, 2014. Id., Ex. D (Letter from the Clerk of the Supreme Court of the United States to the Clerk of the District of Columbia Circuit dated Nov. 10, 2014). On December 2, 2014, the District of Columbia Circuit issued its mandate. Mandate (Dec. 2, 2014), ECF No. 924. On November 28, 2015, the defendant filed his § 2255 motion, see Def.'s § 2255 Mot. at 1, in which he requests an evidentiary hearing, see id. ¶ 8.

         II. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2255 (2012) (“AEDPA”), permits a person in custody under sentence by a federal court to “move the court which imposed the sentence to vacate, set aside or correct the sentence” on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, . . . that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). If the reviewing court finds that any of these grounds exist, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id. § 2255(b).

         III. ANALYSIS

         The AEDPA sets a one-year period of limitation for filing a motion under § 2255. See Id. § 2255(f). Both parties agree that in this case, the one-year period starts to run from the date that the defendant's judgment of conviction became final. See Def.'s § 2255 Mot. ¶ 5; Gov't's Mot. to Dismiss at 5; see also 28 U.S.C. § 2255(f)(1). In Clay v. United States, 537 U.S. 522 (2003), the Supreme Court determined that for § 2255 purposes, “[f]inality attaches when [the Supreme] Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires, ” id. at 527.

         The government argues that the defendant's § 2255 motion is untimely because it was filed on November 28, 2015, more than one year after the Supreme Court denied the defendant's petition for a writ of certiorari on November 10, 2014. See Gov't's Mot. to Dismiss at 6-7. The defendant does not dispute that his motion is untimely, but argues that he is entitled to equitable tolling to excuse his untimely filing. See Def.'s Reply at 2-3. Specifically, the defendant asserts that, “to his detriment, [he] relied on the advice of counsel in not presenting appellate issues in earlier pleadings, but rather wait[ed] for the [§] 2255 motion, whereby said counsel then miscalculated the pertinent deadline and filed late.” Id. at 3; see also id., Attachment (“Attach.”) A (Affidavit of Jenifer Wicks (“Wicks Affidavit”)) ¶ 10 (“I calculated the [§ 2255] deadline and [the defendant] relied entirely on my judgment as to the deadline.”). The government argues in response that “extraordinary circumstances” are not present to justify equitable tolling in this case. Gov't's Response at 2-3. The Court agrees with the government.

         In United States v. McDade, 699 F.3d 499 (D.C. Cir. 2012), the District of Columbia Circuit held “that equitable tolling applies to motions filed pursuant to § 2255.” Id. at 504. However, the District of Columbia Circuit noted:

As the Supreme Court has held, attorney error alone in calculating a filing deadline generally does not amount to extraordinary circumstances. See Lawrence v. Florida, 549 U.S. 327, 336 (2007). Moreover, the Court observed in Irwin[ v. Department of Veterans Affairs] that courts have “typically extended equitable relief only sparingly.” 498 U.S. [89, ] 96 [(1990)]. Still, the Court observed approvingly, courts have “allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or . . . been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.” Id. It cautioned that it has generally “been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.” Id.

McDade, 699 F.3d at 505; see also Lawrence, 549 U.S. at 336-37 (“Attorney miscalculation [of the AEDPA limitations period] is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.”).

         In McDade, the defendant (1) researched and gathered evidence in support of his ineffective assistance of counsel claim, (2) advised his counsel of his wish to include that claim in his § 2255 motion, (3) “alerted counsel almost four months in advance” of the deadline for his § 2255 motion, and (4) requested that his attorney send him a draft of his motion, which the attorney never did. See 699 F.3d at 501, 505. Moreover, the defendant's counsel filed the defendant's § 2255 motion on time, but failed to include the ineffective assistance of counsel claim “due solely to his own inadvertence.” See id. The defendant's counsel thereafter filed an amended motion that included the ineffective assistance of counsel claim “only [thirty] days past the one-year limitations period.” See id. The District of Columbia Circuit held that the defendant's ‚Äúdiligence in pursuing his claim and his counsel's failure to abide by his requests demonstrate extraordinary circumstances warranting application of equitable tolling to his ...


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