821 F.2d 1271 (7th Cir. 1987), 85-1984, Rizzo v. United States

Docket Nº:85-1984.
Citation:821 F.2d 1271
Party Name:Patrick R. RIZZO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:June 02, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1271

821 F.2d 1271 (7th Cir. 1987)

Patrick R. RIZZO, Petitioner-Appellant,


UNITED STATES of America, Respondent-Appellee.

No. 85-1984.

United States Court of Appeals, Seventh Circuit

June 2, 1987

Argued Feb. 9, 1987.

Jo Ellen J. Watts, Jenner & Block, Chicago, Ill., for petitioner-appellant.

David H. Miller, Asst. U.S. Atty., R. Lawrence Steele, Jr., U.S. Atty., Ft. Wayne, Ind., for respondent-appellant.

Before BAUER, Chief Judge, CUDAHY and POSNER, Circuit Judges.

Page 1272

BAUER, Chief Judge.

In 1967, at the age of 21, Patrick Rizzo was separately convicted both of robbing a federally insured bank while using a dangerous weapon, 18 U.S.C. Sec. 2113(d), and of forcing a jail employee to aid him in an attempted escape, 18 U.S.C. Sec. 2113(e). Although the convictions arose from two separate incidents, Rizzo was sentenced for each at the same time. He received the maximum sentence for both convictions: twenty-five years each, to be served consecutively. 1 Seventeen years later, Rizzo filed a motion to correct or vacate his sentence pursuant to 28 U.S.C. Sec. 2255. 2 The motion alleged various sentencing errors made by the trial court. The district court dismissed the section 2255 motion, finding it barred by the doctrine of laches. The government had neither raised nor argued laches. Because there is no evidence in the record to support a finding of laches, we reverse, grant the petition in part, and remand for resentencing.


Rizzo's section 2255 motion alleged that at sentencing, the trial court failed to consider whether he would benefit from commitment under the Federal Youth Corrections Act, 18 U.S.C. Sec. 5005 (repealed 1984), and that the court had failed to disclose his presentence report in violation of Fed.R.Crim.P. 32. Before the government filed an answer to the motion, Rizzo filed a supplement which alleged that his sentence was unconstitutional because the court had relied in part, on juvenile delinquency adjudications which were obtained without benefit of counsel. The district court did not reach the merits of Rizzo's claims, but dismissed the motion based on laches, presuming that the government was prejudiced by the delay and finding that Rizzo had not "explained why he has waited seventeen years before filing."


The issue of laches was not raised by the government and no evidence of prejudice appears in the record. Rizzo's failure to explain his delay can itself be explained by the fact that Rizzo had no notice that laches was an issue in the case. Rule 9(a) of the Rules Governing Section 2255 Cases codified the common-law doctrine of laches as it applies to motions for relief under section 2255. Rule 9(a) provides:

(a) Delayed motions. A motion for relief made pursuant to these rules may be dismissed if it appears that the government has been prejudiced in its ability to respond to the motion by delay in its filing unless the movant shows that it is based on grounds of which he...

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