Jones v. U.S., No. 01-13191 Non-Argument Calendar.

• Decision Date: 18 June 2002
• Docket Number: No. 01-13191 Non-Argument Calendar.
• Citation: 304 F.3d 1035
• Parties: Charles Larry JONES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

304 F.3d 1035

Charles Larry JONES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 01-13191 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 18, 2002.

Stephanie Kearns and Ronit Zivah Walker, Fed. Pub. Defenders, Paul S. Kish, Federal Defender Program, Inc., Atlanta, GA, for Petitioner-Appellant.

Henry Allen Moye, Atlanta, GA, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, CARNES and HULL, Circuit Judges.

PER CURIAM:

This appeal requires us to determine whether a federal prisoner's unspecific reference to filing a 28 U.S.C. § 2255 motion in another § 2255 motion in a related case qualifies to equitably toll the statutory limitation period. Charles Larry Jones was convicted for his participation in a cocaine distribution conspiracy.¹ His conviction and sentence of 292 months of imprisonment were affirmed by this court, and certiorari was denied by the United States Supreme Court on February 22, 1993. United States v. Eley, 958 F.2d 1083 (table) (11th Cir.1992), cert. denied, DeFoor v. United States, 507 U.S. 916, 113 S.Ct. 1271, 122 L.Ed.2d 666 (1993). On September 18, 2000, Jones filed his pro se, form § 2255 motion, which the district court denied as untimely; judgment was entered on November 20, 2000.

Jones then moved the district court to alter or amend the judgment and contended for the first time that the statute of limitations should have been equitably tolled. He argued that tolling was warranted because, in his § 2255 motion that was filed on March 28, 1997, in a related case concerning the same facts and pending at that time in the same district as this case, that he had stated: "I plan on filing a 2255 on my other case."² R1-76; SR1-83-Ex. A-7. Jones makes the novel argument, which is one of first impression nationwide, that this unspecific reference in a related case notified the government of his prospective intention to file a § 2255 motion in this case and preserved his right to do so. The district judge denied the motion to alter or amend the judgment because Jones "failed to make a legal showing as to why his motion pursuant to 28 U.S.C. § 2255 should be considered timely filed." R1-77. Jones appeals the district judge's denial of his § 2255 motion to vacate, set aside, or correct his sentence as untimely and the order denying his motion to alter or amend the judgment based on equitable tolling of the one-year statute of limitations. Pursuant to the district court's certificate of appealability ("COA"), our review is "limited to the question of whether the pendency of a similar claim in another habeas proceeding operates to toll the one-year statute of limitations found in 28 U.S.C. § 2255."³ R1-82; see Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998) (per curiam) (holding that "appellate review is limited to the issues specified in the COA").

We review de novo both a district court's determination "that a petition for federal habeas corpus relief was time-barred," Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir.2002), and a "district court's determination that equitable tolling is inapplicable," Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000).⁴ The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a mandatory, one-year "period of limitation" for § 2255 motions, which runs from the latest of the following events:

(1) the date on which the judgment of conviction becomes final;

(2) 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;

(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(1)-(4). We have held that a federal prisoner whose conviction became final prior to the effective date of the AEDPA, April 24, 1996, has one year, until April 23, 1997, to file a § 2255 motion. Goodman v. United States, 151 F.3d 1335, 1337-38 (11th Cir.1998) (per curiam). Because Jones's conviction in this case was final with the denial of certiorari in his direct appeal by the United States Supreme Court⁵ prior to the effective date of the AEDPA, his one-year, statutory limitation period for filing his § 2255 petition terminated on April 23, 1997.⁶ Helton v. Secretary for the Dep't of Corrections, 259 F.3d 1310, 1312 (11th Cir.2001) (per curiam), cert. denied, ___ U.S. ___, 122 S.Ct. 1965, 152 L.Ed.2d 1025 (2002). Unless Jones is eligible for equitable tolling, his § 2255 motion was time barred when he filed it.⁷ Akins v. United States, 204 F.3d 1086, 1089 (11th Cir.), cert. denied, 531 U.S. 971, 121 S.Ct. 410, 148 L.Ed.2d 316 (2000).

Because it is "an extraordinary remedy," Steed, 219 F.3d at 1300, equitable tolling has been permitted by federal courts "only sparingly," Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990). A fundamental purpose for the AEDPA was to establish finality in post-conviction proceedings. Duncan v. Walker, 533 U.S. 167, 178, 121 S.Ct. 2120, 2127, 150 L.Ed.2d 251 (2001); Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 1490, 146 L.Ed.2d 435 (2000). In contrast to 28 U.S.C. § 2254, where federal habeas proceedings for state prisoners involve comity and federalism concerns in addition to finality, the Supreme Court has clarified that § 2255 does not implicate exhaustion or other collateral proceedings.⁸ See Duncan, 533 U.S. at 178-80, 121 S.Ct. at 2127-29. Since the Court has upheld "the signal purpose[] animating AEDPA [a]s [being] the desire of Congress to achieve finality in criminal cases, both federal and state," through strict interpretation of the one-year limitation period for federal prisoners in § 2255, we must be cautious in analyzing a § 2255 petitioner's appellate issues not to "create a loophole which is contrary to the legislative intent of insuring a greater degree of finality."⁹ Brackett v. United States, 270 F.3d 60, 69 (1st Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1575, 152 L.Ed.2d 495 (2002).

In the § 2255 context, equitable tolling "is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999) (per curiam); see Calderon v. United States Dist. Court, 128 F.3d 1283, 1288 (9th Cir.1997) ("Equitable tolling will not be available in most cases, as extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time."). "The `extraordinary circumstances' standard applied in this circuit focuses on the circumstances surrounding the late filing of the habeas petition, rather than the circumstances surrounding the underlying conviction." Helton, 259 F.3d at 1314-15. The petitioner has the burden of proving entitlement to equitable tolling by showing that "extraordinary circumstances that were both beyond his control and unavoidable even with diligence" prevented filing the petition on time. Akins, 204 F.3d at 1090; see Trenkler v. United States, 268 F.3d 16, 25 (1st Cir.2001) (stating that the § 2255 petitioner "bears the burden of establishing the basis for" equitable tolling); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618-19 (3d Cir.1998) (recognizing "that equitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair' .... [and that a] petitioner must show that he or she `exercised reasonable diligence in investigating and bringing [the] claims'" (third alteration added) (internal citations omitted)). Federal courts "must examine each case on its facts" and apply statutory law and controlling precedent to determine if a particular request qualifies for equitable tolling of the unequivocal, one-year limitation period. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999), cert. denied, 531 U.S. 1164, 121 S.Ct. 1124, 148 L.Ed.2d 991 (2001); see 28 U.S.C. § 2255.

Jones's appointed appellate counsel offers three reasons for his failure to file his § 2255 motion within the one-year limitation period that allegedly qualify for equitable tolling.¹⁰ The first is that the government had notice that Jones's § 2255 motion was going to be filed in this case because of his unspecific reference in his other § 2255 motion, filed timely in a similar case in the same district with the same counsel, that he was going to file a § 2255 motion in his "other" case, purportedly meaning this case. This argument is fraught with problems, not the least of which is the fact that Jones has provided no direct authority for his innovative proposition, and we have found none.

Jones has misapprehended the notice requirement concerning the one-year limitation period, which derives from the mandatory language of § 2255 as well as his burden of proof. See 28 U.S.C. § 2255 ("A 1-year period of limitation shall apply to a motion under this section." (emphasis added)). The onus is on Jones, not on the government, to show why he did not file his § 2255 motion within the statutory limitation period. His deflective notice argument misses the issue and misconstrues his burden of proof.

Even if Jones's notice argument were colorable, he failed to provide specific notice that he meant this case. It is impracticable to expect the government, inundated with numerous prisoners' cases, to parse any petitioner's other cases to find an unspecific reference to...