United States District Court, District of Columbia
B. WALTON United States District Judge
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 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.
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
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.
STANDARD OF REVIEW
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).
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.
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.
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
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 “diligence in pursuing his claim and
his counsel's failure to abide by his requests
demonstrate extraordinary circumstances warranting
application of equitable tolling to his ...