Nolan v. U.S.

• Decision Date: 18 February 2004
• Docket Number: No. 02-2162.,02-2162.
• Citation: 358 F.3d 480
• Parties: Leroy NOLAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

358 F.3d 480

Leroy NOLAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 02-2162.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 2003.

Decided February 18, 2004.

Jon M. Juenger, (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Petitioner-Appellant.

Scott A. Verseman (argued), Daniel L. Olson, Office of the United States Attorney, Rockford, IL, for Respondent-Appellee.

Before RIPPLE, KANNE, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Leroy Nolan is trying to pursue a motion under 28 U.S.C. § 2255, but he has been blocked at the doorway by the one-year statute of limitations that applies to such motions. He realizes that this is a formidable problem, which he can avoid only if this court is willing to find that the deadline has been equitably tolled in his case. Limitations periods to one side, he would like to show that he received constitutionally ineffective counsel and that he was improperly convicted of violating 18 U.S.C. § 924(c)(1), in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). We conclude that, while equitable tolling is possible in a proper case, Nolan's is not that case, and we thus affirm the district court's finding that Nolan's claims are time-barred.

I

In May 1994, Nolan and his co-defendant Michael Henderson were convicted of conspiring to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846, distributing cocaine base in violation of 21 U.S.C. § 841(a)(1), and knowingly using a nine-millimeter firearm during a drug offense in violation of 18 U.S.C. § 924(c). Their convictions were affirmed on direct appeal to this court in June 1995, although Henderson's sentence was vacated and his case was remanded for a new sentencing hearing because of a problem with the district court's methodology in calculating drug quantity. United States v. Henderson, 58 F.3d 1145 (7th Cir.1995). Nolan's lawyer did not challenge the district court's calculation of drug quantity for sentencing purposes.

In April 1997, nearly two years after the direct appeal was decided, the pair filed a joint motion for a new trial pursuant to FED. R. CRIM. P. 33, in which they alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The district court denied their motion one day later. In September 1997, while the joint appeal of their Rule 33 motion was pending before this court, Nolan wrote a letter to the district court, asking whether his pending Rule 33 appeal suspended the one-year limitations period for filing a motion for collateral relief under 28 U.S.C. § 2255. Nolan never received a response to his ex parte communication from the district court. On August 13, 1998, one year after Nolan wrote to the district court, this court summarily affirmed the lower court's denial of his Rule 33 motion. United States v. Michael Henderson, No. 97-1998 (7th Cir. August 13, 1998) (unpublished order).

Three years later, in July 2001, Nolan sought leave from this court to file a successive § 2255 motion. Nolan's application was dismissed without prejudice because it was unclear whether any of his previous filings had been treated as a § 2255 motion. Shortly thereafter, this court issued an opinion that Henderson's earlier Rule 33 motion did not count as a prior collateral attack under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2255, because the district court neither treated his Rule 33 motion as a motion under § 2255, nor did it inform Henderson that it was doing as much. Henderson v. United States, 264 F.3d 709, 711 (7th Cir.2001). In so ruling, we anticipated the Supreme Court's later decision in Castro v. United States, ___ U.S. ___, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003), in which the Court held that a district court may not "convert" a filing into a § 2255 motion without first explaining its action to the petitioner, warning her of the consequences of such a recharacterization, and giving her an opportunity to withdraw the motion. The effect of our decision in Henderson was to establish that Henderson (and Nolan by parity of reasoning) did not need to follow the procedure outlined in § 2255 ¶ 8 for second or successive petitions. It did not address any other procedural requirements for § 2255 motions.

Two months later, in October 2001, Nolan filed a pro se § 2255 motion in the district court, in which he asserted claims of ineffective assistance of trial and appellate counsel, and actions inconsistent with the rules announced in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court rejected Nolan's claims as untimely under § 2255; in the alternative, it rejected his arguments on the merits.

In August 2002, this court granted Nolan a certificate of appealability limited to the question "whether the statute of limitations should have been equitably tolled because, until the court decided Henderson v. United States, 264 F.3d 709 (7th Cir.2001), he reasonably believed that his new trial motion, which the district court construed as a § 2255 motion without notice to Nolan, `counted' as a prior collateral attack for purposes of § 2255 ¶ 8." The order granting the certificate of appealability further specified that Nolan had "made a substantial showing of the denial of a constitutional right as to his Bailey and ineffective assistance of counsel claims, but not his Apprendi claim." This cleared the way for the parties to brief the former two issues on appeal as well.

II

The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2255, added a one-year limitation period for pursuing relief under 28 U.S.C. § 2255. The period for filing such a motion begins to run

from the latest of —

(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 ¶ 6. Nolan concedes that his claims are not timely under any of the statutory options. Therefore, unless we are persuaded that the statute of limitations can and should be equitably tolled for his claims, they are time-barred.

We begin by addressing the confusion over whether a court has the power equitably to toll the statute of limitations for a § 2255 motion. The government argues that this remains an open question in our circuit. Although the cases have not been as clear as they might have been, a close reading shows that we have consistently held that "§ 2255's period of limitation is not jurisdictional but is instead a procedural statute of limitations subject to equitable tolling." United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.2000) (citing Taliani v. Chrans, 189 F.3d 597 (7th Cir.1999)). Accord Montenegro v. United States, 248 F.3d 585, 594 (7th Cir.2001). In fact, every circuit that has considered the issue has held that the one-year limitation period under § 2255 (and in some situations the comparable period in 28 U.S.C. § 2244(b) for § 2254 petitions) is a statute of limitations subject to equitable tolling. See Dunlap v. United States, 250 F.3d 1001, 1004 n. 1 (6th Cir.), cert. denied, 534 U.S. 1057, 122 S.Ct. 649, 151 L.Ed.2d 566 (2001) (collecting cases); 3 CHARLES ALAN WRIGHT, NANCY J. KING, & SUSAN R. KLEIN, FEDERAL PRACTICE & PROCEDURE, § 597, at 321 (2003 Supp.). But see United States v. Pollard, 161 F.Supp.2d 1, 12 (D.D.C.2001) (finding that Congress did not intend to allow equitable tolling of § 2255 claims).

Montenegro is not to the contrary. There, we acknowledged again that "[b]ecause § 2255's tolling period is procedural, not jurisdictional, the period may be equitably tolled." 248 F.3d at 594. Only after that point was clear did we note that the scope of equitable tolling is probably quite narrow: "[i]n Taliani, we noted that `it is unclear what room remains for importing the judge-made doctrine of equitable tolling' into § 2244 claims, given the express tolling provisions incorporated in the statute. The same goes for § 2255, and we continue to decline to reach the issue." Id., quoting Taliani, 189 F.3d at 598. The government reads this passage as questioning the overall applicability of the doctrine of equitable tolling to § 2255 motions.

In our view, the government has read too much into the Montenegro comment. Our recent decision in Modrowski v. Mote, 322 F.3d 965 (7th Cir.2003), illustrates this. In Modrowski, we refused equitably to toll the statute of limitations for a § 2254 petitioner whose attorney, because of mental incompetence, missed the filing deadline by one day. Id. at 968. Because the circumstances of that case would not have supported equitable tolling in any event, the panel reserved the question whether the statute of limitations for a state prisoner's § 2254 claim may ever be equitably tolled. Id. at 967 n. 2. In passing on this question, the Modrowski court explicitly distinguished § 2254 and § 2255 petitions: "[w]e have held that the limitation period for motions under § 2255 is subject to equitable tolling, but we have never decided the question conclusively for § 2254 petitions." Id. (citations omitted). Nolan, a federal prisoner, is proceeding under § 2255. We therefore...