Ingram v. United States
| Decision Date | 09 February 2016 |
| Docket Number | No. C 14-4071-MWB,No. CR 07-4056-2-MWB,C 14-4071-MWB,CR 07-4056-2-MWB |
| Parties | MICHAEL INGRAM, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
On August 27, 2014, petitioner Michael Ingram filed his pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (§ 2255 Motion) (Civ. docket no. 1). Ingram seeks relief, on various grounds, from his May 12, 2009, sentence to 240 months of imprisonment on a conviction for conspiring to distribute and to possess with intent to distribute crack cocaine after a prior felony drug conviction in violation of 21 U.S.C. §§ 846 and 851. This case is now before me on the respondent's December 31, 2014, Motion To Dismiss (Civ. docket no. 3), in which the respondent argues that Ingram's § 2255 Motion is untimely. In response, Ingram asserts equitable tolling of the statute of limitations and the timeliness of certain claims, based on "new facts," pursuant to 28 U.S.C. § 2255(f)(4).
On March 5, 2008, a jury found Ingram guilty of conspiracy to distribute and to possess with intent to distribute 50 grams or more of crack cocaine. See Verdict Form (Crim. docket no. 131). On June 5, 2008, I denied Ingram's Motion For Judgment Of Acquittal Or In The Alternative Motion For New Trial. See Memorandum Opinion And Order (Crim. docket no. 149). On February 4, 2008, prior to trial, the prosecution had filed a Notice Of Intent To Seek Enhanced Penalties Pursuant To 21 U.S.C. § 851 (Crim. docket no. 86). Ingram did not indicate an intent to object to the requested enhancement until he filed his Response To 21 U.S.C. § 851 Filing (Crim. docket no. 156) on June 13, 2008, the last business day before his sentencing hearing on June 16, 2008. At Ingram's first sentencing hearing, I ruled that the prosecution had failed to prove a prior conviction under § 851 and sustained Ingram's objection to a § 851 enhancement.Sentencing Hearing Minutes (Crim. docket no. 160). The prosecution requested, and I granted, leave to file an interlocutory appeal, and I deferred sentencing until such an appeal was decided. See id.
In a per curiam decision, handed down February 2, 2009, the Eighth Circuit Court of Appeals reversed and remanded with directions to afford the prosecution another opportunity to attempt to prove that the Illinois code section cited in pertinent court records as the statute under which Ingram had been previously been convicted defined a felony drug conviction. See Opinion (Crim. docket no. 187); Amended Opinion (Crim. docket no. 190). Consequently, I held the second part of Ingram's sentencing hearing on March 24, 2009. See Sentencing Hearing Minutes (Crim. docket no. 199). I continued that sentencing hearing, however, to allow the parties to brief certain remaining issues. See id.
I ultimately concluded Ingram's sentencing hearing on May 8, 2009. See Sentencing Hearing Minutes (Crim. docket no. 206). In a Memorandum Opinion (Crim. docket no. 207), filed May 11, 2009, I registered my disagreement with the appellate court's decision to grant the prosecution a "second bite at the apple" to prove Ingram's prior felony conviction, but concluded, nevertheless, that the prosecution had done so on that "second bite." See United States v. Ingram, 613 F. Supp. 2d 1069 (N.D. Iowa 2009). Therefore, I sentenced Ingram to a "doubled" mandatory minimum sentence of 240 months pursuant to 21 U.S.C. §§ 841(b)(1)(A), 846, and 851, and Judgment entered on May 12, 2009. Judgment (Crim. docket no. 208).
Ingram filed a Notice Of Appeal (Crim. docket no. 209) on May 13, 2009. In an Opinion (Crim. docket no. 229), filed in our court on February 11, 2010, the Eighth Circuit Court of Appeals affirmed Ingram's conviction and sentence. On June 15, 2010, the same counsel who had represented Ingram in the trial court and on appeal (criminal counsel) filed a Petition For Writ Of Certiorari (Crim. docket no. 234) on Ingram'sbehalf. On October 8, 2010, the United States Supreme Court denied Ingram's Petition For Writ Of Certiorari. See Crim. docket no. 235. Subsequent proceedings in Ingram's criminal case in this court do not appear to be relevant to the disposition of the Motion To Dismiss now before me.
As noted, above, on August 27, 2014, Ingram filed his pro se § 2255 Motion. Ingram asserts the following grounds for § 2255 relief: (1) ineffective assistance of appellate counsel in failing to follow through and use reasonable diligence to inform Ingram of the denial of his Petition For Writ Of Certiorari and ignoring Ingram's requests for information about the status of that Petition; (2) violation of Ingram's Eighth Amendment rights as the result of the § 851 enhancement of his sentence; (3) violation of "the original meaning of the Constitution" by removal of the determination of Ingram's prior conviction from the province of the jury; and (4) violation of equal protection and due process rights as a result of the § 851 enhancement of Ingram's sentence. Ingram attached to his § 2255 Motion a pro se brief, which he identified as stating the facts supporting each of his grounds for relief, as well as an affidavit of one Fredetta Gibson, concerning her inquiries, on Ingram's behalf, to Ingram's criminal counsel concerning the status of his Petition For Writ Of Certiorari. In an Initial Review Order (Civ. docket no. 2), filed October 27, 2014, I directed the Clerk of Court to appoint counsel (habeas counsel) to represent Ingram in these proceedings and directed the respondent to move or plead in response to Ingram's § 2255 Motion on or before December 29, 2014.
On December 31, 2014, the respondent filed the Motion To Dismiss (Civ. docket no. 3) now before me, asserting that Ingram's § 2255 Motion is untimely and that the one-year statute of limitations has not been equitably tolled. Ingram filed a Response (Civ. docket no. 5), with the assistance of habeas counsel, on January 30, 2015, to whichhe attached an affidavit from habeas counsel and an affidavit of his own. The respondent filed a Reply (Civ. docket no. 6) on February 5, 2015.
There, unfortunately, this matter languished for more than a year, owing to the press of other business and clerical oversight by chambers staff.
Section 2255 proceedings are civil in nature and, therefore, governed by the Federal Rules of Civil Procedure. See, e.g., Mandacina v. United States, 328 F.3d 995, 1000 & n.3 (8th Cir.), cert. denied, 540 U.S. 1018 (2003). Those rules include Rule 12(b), which provides for a pre-answer motion to dismiss on various grounds. In Moore v. United States, 173 F.3d 1131 (8th Cir. 1999), the Eighth Circuit Court of Appeals held that the references to a one-year "period of limitation" or "limitation period" in 28 U.S.C. § 2255(f) "does not purport to limit the jurisdiction of the courts," and, as such, the "limitation period" is subject to "equitable tolling." 173 F.3d at 1134. More importantly, here, because the "statute of limitations" in § 2255(f) is not "jurisdictional," a motion to dismiss based on untimeliness is pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for "failure to state a claim upon which relief can be granted," rather than pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction. Cf. Wong v. Wells Fargo Bank, N.A., 789 F.3d 889, 897 (8th Cir. 2015) ().
Although factual "plausibility" is ordinarily the central focus of Rule 12(b)(6) motions to dismiss under the Twom-bal standard,1 various federal Circuit Courts of Appeals have expressly recognized, and the Eighth Circuit Court of Appeals has suggested, that the Twom-bal standard still permits dismissal pursuant to Rule 12(b)(6) of a claim that lacks a cognizable legal theory, in addition to permitting dismissal for factual implausibility. See, e.g., Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013); Ball v. Famiglio, 726 F.3d 448, 469 (3d Cir. 2013) (); Commonwealth Property Advocates, L.L.C. v. Mortgage Electronic Registration Sys., Inc., 680 F.3d 1194, 1202 (10th Cir. 2011) (...
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