Deverso v. U.S.A, Case No. 2:09-cv-660-FtM-29SPC
| Decision Date | 09 February 2011 |
| Docket Number | Case No. 2:09-cv-660-FtM-29SPC,Case No. 2:05-cr-034-FtM-2 9SPC |
| Parties | DONALD J. DEVERSO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on petitioner Donald J. Deverso's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #181)1 filed on October 5, 2009. Petitioner supplemented this motion with a Supplement Due to an Intervening Change in Law (Cv. Doc. #6) on October 22, 2009, and filed another Supplement to Motion 28 U.S.C. § 2255 (Cv. Doc. #7) on December 4, 2009. The United States filed its Response in Opposition to Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, Pursuant to 28 U.S.C. § 2255 (Cv. Doc. #8) on December 4, 2009. Petitioner filed a Reply to the Response of the United States (Cv. Doc. #10) on December 29, 2009. Additionally, petitioner filed a Motion for Summary Judgment on his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Cv. Doc. #21) on September 16, 2010.
Also before the Court are petitioner's Motion for Discovery and Inspection (Cv. Doc. #13) and Motion to Recuse and Disqualify Judge (Cv. Doc. #15) and supporting Affidavit (Cv. Doc. #16).
For the reasons set forth below, all of petitioner's motions are denied.
On April 13, 2005, a federal grand jury in Fort Myers, Florida, returned an Indictment (Cr. Doc. #1) against Donald J. Deverso (petitioner or Deverso). In due course, a Second Superceding Indictment (Cr. Doc. #42) was filed charging petitioner with three felony offenses: Possession of materials involving a depiction of a minor engaged in sexually explicit activity, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count One); transporting materials involving a depiction of a minor engaged in sexually explicit activity, in violation of 18 U.S.C. § 2252(a)(1) (Count Two); and using a minor to engage in sexually explicit conduct outside of the United States for the purpose of producing a visual depiction of such conduct and transporting the visual depiction into the United States, in violation of 18 U.S.C. § 2251(c)(2)(B) (Count Three). A jury trial began on May 15, 2006, and the jury found petitioner guilty of all three counts on May 19, 2006. (Cr. Doc. #122.) On October 30, 2006, petitioner was sentenced to a term of imprisonment of 120 months as to Count One, 195 months as to Count Two, and 195 months as to Count Three, to be served concurrently. (Cr. Doc. #169.) Petitioner was also sentenced to a life term of supervised release following the period of incarceration. (Id.)
Petitioner appealed his convictions and sentences (see Cr. Doc. #147), and on March 5, 2008, the Court of Appeals for the Eleventh Circuit affirmed (Cr. Doc. #173) in a published opinion. United States v. Deverso, 518 F.3d 1250 (11th Cir. 2008). No petition for certiorari was filed with the United States Supreme Court.
On May 22, 2009, petitioner filed a Motion to Stay Time Limitation for Filing Motion to Vacate, Set Aside, or Correct Sentence, Pursuant to 28 U.S.C. § 2255 or in the Alternative Apply Equitable Tolling of the Limitation to Avoid Defendant's Untimely Filing of § 2255 Because of Extraordinary Circumstances. (Cr. Doc. #177.) This motion was denied by the Court on May 27, 2009. (Cr. Doc. #178.)
Petitioner's Motion Under 28 U.S.C. § 2255 was filed on October 5, 2009. (Cv. Doc. #1; Cr. Doc. #181.) The motion was dated September 29, 2009, and in the absence of evidence to the contrary the Court will presume it was delivered to prison authorities to be mailed on the same date. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). Therefore the motion is deemed to have been filed on September 29, 2009. Because petitioner is proceeding pro se, his pleadings are construed liberally. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
The United States argues that petitioner's § 2255 motion is untimely, that petitioner has not established an entitlement to equitable tolling, and that the § 2255 motion must therefore be dismissed. (Cv. Doc. #8, pp. 10-11.) Petitioner has set forth a factually detailed chronology which, read liberally, argues that he is entitled to equitable tolling which results in a timely petition. (Cv Doc. #1-3, pp. 1-42.) Unlike an appellate court, Gonzalez v. Secretary, Florida Dep't Of Corr., No. 09-15599, 2011 WL 6508 at *1 (11th Cir. Jan. 3, 2011), a district court is required to resolve such a disputed issue regardless of whether the § 2255 motion is granted or denied. Long v. United States, 626 F.3d 1167, 1169 (11th Cir. 2010).
Federal prisoners whose convictions became final after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), have one year from the latest of any of four events to file a § 2255 motion: (1) the date on which the judgment of conviction becomes final; (2) the date on which any government-imposed impediment to making the motion is removed; (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 diligence. 28 U.S.C. § 2255(f). See also Gooden v. United States, 627 F.3d 846, 848 (11th Cir. 2010). The only applicable triggering event in this case is the date petitioner's judgment of conviction became final.
The Court of Appeals for the Eleventh Circuit affirmed petitioner's convictions on March 5, 2008, (Cr. Doc. #173), and no petition for a writ of certiorari was filed. "[F]or federal criminal defendants who do not file a petition for certiorari with [the Supreme Court] on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires." Clay v. United States, 537 U.S. 522, 532 (2003); see also Kaufmann v. United States, 282 F.3d 1336, 1337 (11th Cir. 2002). The time for seeking certiorari review expires 90 days after entry of the appellate judgment or order sought to be reviewed. Michel v. United States, 519 F.3d 1267, 1268 n.1 (11th Cir. 2008). Accordingly, § 2255's one-year limitation period for petitioner started to run on June 3, 2008, when the time for filing a petition for a writ of certiorari expired. Therefore, petitioner had until June 3, 2009, to file a motion under 28 U.S.C. § 2255.
Petitioner's § 2255 motion was deemed filed on September 29, 2009, several months beyond the one year limitation period. Unless equitable tolling applies and excludes a sufficient number of days, the § 2255 motion must be dismissed.
Petitioner essentially argues that his time to file the § 2255 petition should be tolled because of the professional misconduct by his appellate attorney. The Eleventh Circuit has routinely considered equitable tolling in the context of § 2255 motions, applying the same standards as in § 2254 cases. See Mazola v. United States, 294 F. App'x 480 (11th Cir. 2008). Equitable tolling is available if a petitioner shows that he has been pursuing his rights diligently and that some extraordinary circumstance prevented timely filing; the professional misconduct of counsel can under some circumstances satisfy the extraordinary circumstance requirement. Holland v. Florida, 130 S. Ct. 2549 (2010)( that equitable tolling is applicable to a § 2254 petition).
Petitioner has established that he requested his appellate attorney to file a petition for writ of certiorari with the United States Supreme Court, and that his attorney told him in writing on March 25, 2008, April 10, 2008, and June 12, 2008, that he was preparing, and would file, such a petition. Appellate counsel did not file the petition. Petitioner asserts that on October 28, 2008, family members met with his appellate counsel and were toldfor the first time that a petition for a writ of certiorari had not been filed. By a letter dated December 2, 2008, petitioner inquired of the Eleventh Circuit Court of Appeals whether a petition for a writ of certiorari had been filed. By letter dated December 9, 2008 the Eleventh Circuit responded that it did not appear that such a petition had been filed. Petitioner thereafter asked for various relief from the Eleventh Circuit aimed at allowing him to file a belated petition for writ of certiorari, but his requests were denied. Had appellate counsel filed the petition for a writ of certiorari, as petitioner requested and as counsel committed to do, the one year statute of limitations would not have begun when it did because a conviction does not become final until the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari." Clay, 537 U.S. at 527.
The record establishes that petitioner has satisfied the requirements of equitable tolling. Petitioner diligently pursued his legal right to have a petition for a writ of certiorari filed by retained appellate counsel. Counsel repeatedly assured petitioner that he would do so and was working on the petition. Petitioner justifiably relied upon counsel's representations, and initially had no reason to believe the petition had not been filed. The earliest petitioner could be deemed to have knowledge to the contrary is October 28, 2008, when his family members learned thetruth. Even if this information is attributed to petitioner as of the date it was received by family members, and the limitations period is only tolled until that date, petitioner has still filed his § 2255 motion within the resulting one year period, i.e., prior to October 28, 2009. The Court finds that after considering equitable tolling, petitioner's §2255 motion is timely filed and should not be dismissed.
The Eleventh Circuit...
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