Montenegro v. U.S.A.

• Decision Date: 16 April 2001
• Docket Number: No. 00-1301,00-1301
• Citation: 248 F.3d 585
• Parties: (7th Cir. 2001) Horacio U. Montenegro, Petitioner-Appellant, v. United States of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 585

248 F.3d 585 (7th Cir. 2001)

Horacio U. Montenegro, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 00-1301.

In the United States Court of Appeals For the Seventh Circuit.

Argued November 1, 2000.

Decided April 16, 2001.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98-C-195--Rudolph T. Randa, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Cudahy, Coffey, and Easterbrook, Circuit Judges.

Cudahy, Circuit Judge.

Horacio Montenegro appeals a dismissal of his 28 U.S.C. sec. 2255 motion for failure to file within the one-year limitations period. We affirm.

On October 24, 1995, a grand jury returned a one-count indictment against Horacio Montenegro and two others, charging them with conspiracy to distribute and possession with the intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846 and 18 U.S.C. sec. 2. Pursuant to a plea agreement with the government, Montenegro entered a plea of guilty, and was sentenced to 90 months imprisonment. The district court entered judgment on the conviction and sentence on April 19, 1996. On March 2, 1998, Montenegro filed a motion pursuant to 28 U.S.C. sec. 2255, which the district court dismissed on June 30, 1998. The court held that because Montenegro filed this motion 22 months after his conviction and sentence became final, it was barred by the one-year statute of limitations embodied in sec. 2255. The Antiterrorism and Effective Death Penalty Act of 1996 added a limitations period to sec. 2255 motions, and required federal prisoners who wished to appeal final orders on sec. 2255 motions to obtain a certificate of appealability from the court of appeals. See 28 U.S.C. sec.sec. 2255, 2253. Following Montenegro's petition to this court, we granted him a limited certificate of appealability on the questions of when the one-year time limit began to run and whether Montenegro had filed his sec. 2255 motion within that limit. Montenegro argued that the limitations period began to run in mid- 1997, when he first discovered that his appeal had not been filed. Finding the record devoid of adequate information to determine the merits of the appeal, this court issued an order remanding the case to the district court for an evidentiary hearing on the issue of Montenegro's diligence.¹

The district court held an evidentiary hearing on December 16, 1999, at which Montenegro called two witnesses: his trial counsel, Nikola Kostich, and himself. Kostich testified that he did not recall Montenegro's instructing him to file a notice of appeal, and testified that, if he had been instructed to file an appeal, he would have done so. Kostich also testified that, based on his practice and routine, the lack of notes or documents in his file about an appeal meant that he had not been directed to file one. Montenegro testified that he instructed Kostich to file a notice of appeal immediately after his sentencing. Montenegro also testified that while he was incarcerated following his sentencing, he asked an inmate to write a letter to Kostich requesting transcripts of his plea and sentencing; he testified that he did not dictate the contents of the letter because he can speak little English. The letter was not intended to inquire about an appeal, and it did not do so. In response to the letter, Kostich sent Montenegro a copy of the docket sheet. Montenegro was later transferred to another prison about one year after his sentencing. There, several inmates informed Montenegro that appeals could take a year or longer, and so Montenegro simply waited to hear the outcome of his appeal. He did not determine that an appeal had not been filed until the middle of 1997, and he did not file a sec. 2255 motion until March 1998.

Following the evidentiary hearing, the district court decided that Montenegro had not instructed his counsel to file a notice of appeal, and that he had not exercised due diligence in determining that an appeal of his case had not been filed. On the first issue, the court reasoned that Kostich is an experienced criminal defense attorney with an excellent reputation, and thus credited his testimony that, if someone instructs him to file a notice of appeal, he will do so. It also reasoned that it would not "make sense" for Kostich not to appeal a case and thereby lose a paying client. As to the issue whether Montenegro exercised due diligence, the district court determined that he did not. The only contact Montenegro made with his lawyer was through the September 2, 1996 letter, in which he did not inquire about the status of his appeal. The court also cited Davenport v. A.C. Davenport & Son Co. in concluding that lack of sophistication is irrelevant to due diligence inquiries. 903 F.2d 1139 (7th Cir. 1990), overruled on other grounds by Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385 (7th Cir. 1990). The court concluded that Montenegro was not diligent because: 1) when he received a docket sheet in response to his request for a transcript, that should have been a red flag that the appeal was not being processed; 2) he did not call or write to Kostich or the court to inquire about his appeal; 3) any language barrier would not have prevented Kostich from determining from the docket sheet--on which there was no record of an appeal--that an appeal had not been filed, particularly because someone assisted him in translating the docket sheet; and 4) the 9/2/96 letter did not inquire about the status of an appeal. Montenegro filed a notice of appeal and a motion for issuance of a certificate of appealability. The district court issued a certificate of appealability.

I. Ineffective Assistance of Counsel

Although this court remanded this case for an evidentiary hearing solely on the issue of Montenegro's diligence, the district court also made a finding that Kostich had not provided ineffective assistance of counsel, and that is the issue on which the district court certified the appeal. Montenegro argues that Kostich failed to provide effective assistance of counsel in violation of the Sixth Amendment by failing to file an appeal, failing to consult with Montenegro about the merits of his appeal and failing to consult with Montenegro about how to obtain a transcript of his plea and sentencing proceedings. To prevail on an ineffective assistance of counsel claim, Montenegro must show that his attorney's performance "fell below an objective standard of reasonableness" and that the deficient performance caused him prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); United States v. Boyles, 57 F.3d 535, 550 (7th Cir. 1995). Failure to file an appeal when one has been requested constitutes a per se violation. See Castellanos v. United States, 26 F.3d 717, 718 (7th Cir. 1994). The district court found that Montenegro did not ask Kostich to file an appeal, and that therefore Kostich did not render ineffective assistance by not filing one. The court reasoned that Kostich was an experienced criminal defense attorney with an excellent reputation, and it had no reason to doubt Kostich's testimony that--if someone instructs him to file a notice of appeal- -he will do so. Second, the court reasoned, it made no sense that Kostich, if asked to appeal, would reject a paying client. Third, if there had been a discussion, there would have been some record of it in Kostich's file.

The court concluded that Montenegro did request transcripts in a letter sent to Kostich, and that Kostich neither sent the transcripts nor told Montenegro how he might obtain them. It also concluded that, because of the lack of notes in Kostich's file, there had been no discussion of the possibility of appeal between Kostich and Montenegro. We are not satisfied that the court's evidentiary proceeding addressed all the concerns of Montenegro's ineffective assistance claim, particularly in light of the requirement that a criminal defense attorney consult with his client if there are any nonfrivolous grounds for appeal. See Roe v. Flores-Ortega, 120 S.Ct. 1029, 1036 (2000). But we need not go into this potentially contentious issue, because Montenegro loses on the grounds of timeliness.

II. Due Diligence and 28 U.S.C. sec. 2255 para.6(4)

The parties have ignored the limits of the district court's certificate of appealability, and made substantial arguments on the due diligence issue.² Further, this court remanded the case specifically for consideration of Montenegro's due diligence--which was the apparent focus of the district court's proceedings--and thus we will now address that issue.

Prior to the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), there was no statute of limitations for filing a sec. 2255 motion. Under the new law, a one-year limitation period applies. The period runs from the latest of four 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 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. sec. 2255 para.6. Montenegro argues that his claim is not time-barred because the dates described in (3) and (4) are within the one-year limitations period. We shall first address his argument under (4) that he could not have discovered the facts supporting his claim prior to March 1997. Whether Montenegro could have discovered the facts earlier depends on how "due diligence" is defined.

This court has been unable to...