Estremera v. United States

• Decision Date: 30 July 2013
• Docket Number: No. 12–2043.,12–2043.
• Citation: 724 F.3d 773
• Parties: Abraham ESTREMERA, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

724 F.3d 773

Abraham ESTREMERA, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 12–2043.

United States Court of Appeals, Seventh Circuit.

Argued July 9, 2013.

Decided July 30, 2013.

Solana P. Flora (argued), Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner–Appellant.

David E. Bindi (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Respondent–Appellee.

Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

EASTERBROOK, Chief Judge.

Abraham Estremera was sentenced to life imprisonment following his convictions for conspiring to distribute cocaine plus possessing a firearm despite an earlier felony conviction. We affirmed his convictions and sentence, along with those of some confederates. United States v. Bustamante, 493 F.3d 879 (7th Cir.2007). Estremera then sought collateral relief under 28 U.S.C. § 2255, contending that his lawyer had misstated the terms of a plea bargain proposed by the prosecutor. Had the lawyer done his job, Estremera insisted, he would have pleaded guilty and could have received a lower sentence. The district court denied the petition without holding a hearing. 2012 U.S. Dist. LEXIS 28468 (N.D.Ill. Mar. 2, 2012).

The United States asks us to affirm on the ground that the district court erred by reaching the merits while a question of timeliness remained unresolved. Estremera's direct appeal ended on February 27, 2008, when the Supreme Court denied his petition for certiorari, see Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), but he did not invoke § 2255 until October 13, 2009. Section 2255(f) sets a limit of one year unless one of four circumstances restarts the clock, and the United States maintains that none of these four obtains. The district court bypassed the subject, concluding that it would be necessary to hold a hearing before resolving the limitations defense, while the judge thought that the merits could be resolved without a hearing.

Federal statutes of limitations do not affect the tribunal's subject-matter jurisdiction, see Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (general proposition); Day v. McDonough, 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (application to collateral attacks), so the district court was right to conclude that it is permissible to reject a petition on the merits without resolving a limitations defense. There is no necessary priority among non-jurisdictional reasons for rejecting a suit or claim. It makes sense to tackle the merits first when they are easy and the limitations question hard, just as it makes sense (and is permissible) to reject a collateral attack on the merits while other procedural defenses, such as waiver, default, or lack of exhaustion, remain in the background. 28 U.S.C. § 2254(b)(2).

The district judge also was right to conclude that this petition could not be dismissed as untimely without a hearing. Estremera contends that he told his lawyer to file a collateral attack, and that counsel failed to keep the promise to do so—and that not until the year had almost expired did Estremera realize that he had been left in the lurch. Abandonment by counsel can toll the limitations period. See Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Holland deals with state prisoners' petitions under § 2254, but its conclusion is equally applicable to federal prisoners' petitions under § 2255. The Justices stated that not all shortcomings by counsel meet the standard required for tolling: “(1) that [the prisoner] has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” 130 S.Ct. at 2562, quoting from Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). It would take an evidentiary hearing (or an exchange of affidavits revealing the absence of a material factual dispute) to learn whether Estremera had been pursuing his rights diligently and whether whatever counsel did or didn't say or do put an “extraordinary” obstacle in his path, given the conclusion in Holland that a lawyer's “garden variety” negligence does not justify tolling. 130 S.Ct. at 2564. On the current state of the record, we have no idea what happened, so the legal standard cannot be applied. And the record also does not permit a court to determine whether Estremera acted diligently after counsel bugged out. See, e.g., Tucker v. Kingston, 538 F.3d 732, 734–35 (7th Cir.2008).

Estremera contends that diligence on his part was not required because he gets extra time under § 2255(f)(2), which starts a new one-year clock on “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”. He contends that, by the time he realized that his lawyer had abandoned him, he was in his prison's “special management unit” and could not use its law library. He characterizes the lack of library access between June 2008 and July 2009 as an “impediment” of the government's creation and contends that a new one-year period began once this impediment was “removed” by restoration of access.

The United States offers two responses: first, that lack of library access never supports a reset of the time under § 2255(f)(2); second, that Estremera's prison offered electronic access to persons in the special management unit, so there was no obstacle. Unfortunately, the record does not demonstrate what sort of electronic access was available and whether it was enough for any particular prisoner. Estremera is literate in English, but we don't know whether he would be competent to use Westlaw or Lexis without assistance. Librarians and experienced prisoners help the inmates use physical law libraries; this record does not tell us whether electronic access was an adequate substitute. So the second argument is premature.

And the first is wrong. Lack of library access can, in principle, be an “impediment” to the filing of a collateral attack. The United States' contrary position assumes that all a prisoner need do is narrate the facts; legal argument and analysis comes later. Indeed, the form that all prisoners must use when applying for relief under § 2255 tells them to stick to the facts: “Do not argue or cite law. Just state the specific facts that support your claim.” If legal argument and citation are forbidden, the United States contends, prisoners don't need law libraries to file collateral attacks—though they may need law libraries later, in order to support collateral attacks already on file.

This argument supposes that “fact” and “law” can be neatly separated. They can't. The form tells prisoners to “state the specific facts that support your claim.” But how does a prisoner know what facts establish a “claim”? Estremera contends that his lawyer misrepresented the requirements of the proposed plea agreement. If the lawyer erred, Estremera knew it without needing a law library. But does such an error establish a good “claim” for relief? That requires some legal knowledge.

Prisoners who file collateral attacks without doing legal research face two dangers. First, the district judge may dismiss the petition summarily on screening under Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. A prisoner's failure to allege all that is necessary to a valid claim may cause him to lose a winnable petition. Second, a prisoner who files a § 2254 or § 2255 petition based on a bad legal theory may doom his chance to prevail on a good one, for the law allows just one petition as of right. Second or subsequent petitions are possible only under the conditions specified in 28 U.S.C. §§ 2244(b) or 2255(h). Thus filing a petition without research is risky: a good claim may be lost as undeveloped, or a bad claim may be advanced and rejected, blocking relief on a good claim later.

Our opinion in Moore v. Battaglia, 476 F.3d 504, 508 (7th Cir.2007), reserved the question whether lack of library access ever allows more time under § 2255(f)(2). We now join other circuits in holding that it may. See, e.g., Egerton v. Cockrell, 334 F.3d 433, 438 (5th Cir.2003); Whalem v. Early, 233 F.3d 1146 (9th Cir.2000) (en banc). The United States observes that Jones v. Hulick, 449 F.3d 784, 789 (7th Cir.2006), and Tucker v. Kingston, supra, hold that lack of library access does not justify equitable tolling on the facts of those cases, but Estremera doesn't propose common-law tolling; he invokes § 2255(f)(2). That makes it unnecessary to decide when equitable tolling (more properly equitable estoppel, the doctrine that concerns one side's obstruction of another's potential litigation) would be available.

To hold that the absence of library access may be an “impediment” in principle is not necessarily to say that lack of access was an impediment for a given prisoner. “In principle” is a vital qualifier. Perhaps Estremera had no need of a library. Would he have jeopardized a good claim—or advanced a bad one, closing the door to a good claim later—if he had filed without consulting a library? Did he consult one before filing this petition? (The prosecutor maintains that he did not even ask for library access until April 2009, more than a year after his conviction became final.) If he didn't want or need a law library during the year after his conviction became final, its unavailability (if it was unavailable) would not have been an impediment. These and other subjects—in addition to the questions what access Estremera had, and when—would require an evidentiary hearing to explore.

The district court's decision therefore cannot be affirmed on the ground that the petition was untimely, and we must take up the merits. Estremera filed an...