Nolan v. United States

• Decision Date: 11 May 2012
• Docket Number: Criminal No. 05–10340–NMG.,Civil No. 10–11280–NMG.
• Citation: 870 F.Supp.2d 254
• Parties: Paul NOLAN, Defendant/Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Massachusetts

870 F.Supp.2d 254

Paul NOLAN, Defendant/Petitioner,

v.UNITED STATES of America, Respondent.

Criminal No. 05–10340–NMG.

Civil No. 10–11280–NMG.

United States District Court, D. Massachusetts.

May 11, 2012.

Paul Nolan, Terre Haute, IN, pro se.

Dana M. Gershengorn, U.S. Attorney's Office, Boston, MA, for Respondent.

REPORT AND RECOMMENDATION ON MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255

JUDITH GAIL DEIN, United States Magistrate Judge.

I. INTRODUCTION

On May 10, 2007, the defendant/petitioner, Paul Nolan, pled guilty to two counts of bank robbery in violation of 18 U.S.C. § 2113(a). On August 18, 2007, he was sentenced to 170 months of incarceration, a sentence which he is presently serving. His court-appointed appellate counsel filed a timely brief with the First Circuit pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), certifying that, after a review of the record and researching the applicable law, he found no non-frivolous issues to be raised in the appeal. On March 16, 2009, the First Circuit entered judgment, agreeing that there were no non-frivolous issues on appeal. The First Circuit mandate issued on April 9, 2009.

This matter is presently before the court on Nolan's pro se motion, filed pursuant to 28 U.S.C. § 2255, seeking to vacate, set aside, or correct his sentence. (Docket No. 31).¹ In his motion and supporting memoranda, Nolan contends that (1) trial counsel was ineffective, (2) appellate counsel was ineffective, and (3) that the prosecutor engaged in intentional misconduct during the trial which deprived him of his Fifth Amendment right to a fair trial. Nolan also has requested that the court appoint him counsel in connection with his habeas petition. (Docket No. 41). In addition to opposing the habeas petition on the merits, the government contends that it should be dismissed as untimely.

This court finds that the habeas petition may be considered timely filed given that it is dated and signed well within the statutory period. Nevertheless, that issue does not have to be finally resolved because, for the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that Nolan's request for the appointment of counsel and his habeas petition be denied on the merits. No hearing is necessary.

II. STATEMENT OF FACTS

On December 14, 2005, Nolan was indicted by a grand jury sitting in Boston, Massachusetts, with robbing the federally insured Central Bank in Somerville, Massachusetts on September 23, 2005 (Count One), and with robbing the federally insured Charlestown Cooperative Bank in Charlestown, Massachusetts on October 3, 2005 (Count Two), both in violation of 18 U.S.C. § 2113(a). In connection with the Charlestown robbery, Nolan also was indicted for carjacking, in violation of 18 U.S.C. § 2119 (Count Three), and with conspiracy to affect commerce by robbery, in violation of 18 U.S.C. § 1951. (Count Four). He was represented by court-appointed counsel from the Federal Defenders' Office, Oscar Cruz. (Docket Entry 11/16/05).

Nolan entered into a plea agreement with the government, dated May 7, 2007 and signed on May 10, 2007, whereby, inter alia, he agreed to plead guilty to the two bank robbery counts, the government agreed to dismiss the other two counts, and the parties agreed that a sentence of 151 months incarceration and five years of supervised release was the appropriate disposition of the case. (Docket No. 22). Nolan appeared with counsel and pled guilty on May 10, 2007. (Docket Entry 5/10/07). He appeared with counsel for sentencing before Gorton, J. on August 8, 2007. (Docket Entry 8/8/07). At the sentencing, the Court notified Nolan that it would not accept the plea agreement and gave him the option of withdrawing his plea. ( Id.). The defendant waived his right to withdraw his guilty plea, and the Court sentenced him to 170 months in prison, three years of supervised release and restitution to the two banks in the amount of $7,283.50 and $12,548, respectively. ( Id.; Docket No. 23).

Nolan filed a timely appeal. (Docket No. 24). New appellate counsel was appointed, who filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), certifying that, after a review of the record and researching the applicable law, he found no non-frivolous issues to be raised in the appeal. On March 16, 2009, the First Circuit entered judgment, stating in part:

Our review of the record, in particular the transcripts of the change of plea and sentencing hearings as well as the plea agreement, leads us to agree with counsel that there is no non-frivolous issue on appeal.

(Docket No. 30). The mandate issued on April 9, 2009. ( Id.).

Nolan did not file any petition for certiorari with the United States Supreme Court, and it is undisputed that the one year period in which a petition under 28 U.S.C. § 2255 was to be filed expired on June 15, 2010. On July 29, 2010, Nolan's § 2255 Motion and supporting memorandum, both dated April 28, 2010, were entered on the docket of this Court. (Docket Nos. 31, 32). In response to the government's request, on June 15, 2011 this Court ordered the defendant to submit evidence that he put his § 2255 pleadings in the mail in a timely manner, or address why the doctrine of equitable tolling should apply. Nolan subsequently responded by filing two letters addressed to the Court. (Docket Nos. 39 and 41). In his later filing, Nolan also requested that he be appointed counsel.

Additional facts will be provided below where appropriate.

III. ANALYSIS

A. Timeliness

The government contends that Nolan's petition should be dismissed because it was not timely filed. As detailed herein, this court concludes that the question is a close one, and recommends that the petition be accepted as timely and addressed on the merits.

Under the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), a petitioner has one year from the date the judgment of conviction becomes final to file a petition under 28 U.S.C. § 2255. 28 U.S.C. § 2255(f). It is by now well established that “a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction.” Clay v. United States, 537 U.S. 522, 525, 123 S.Ct. 1072, 1076, 155 L.Ed.2d 88 (2003). In the instant case, judgment was entered in the First Circuit on March 16, 2009 (Docket No. 30), and the deadline for filing a writ of certiorari expired 90 days later, on June 14, 2009. Since, however, that was a Sunday, the deadline was extended to June 15, 2009. See Sup.Ct. R. 30.1. Therefore, the defendant had one year from June 15, 2009, or until June 15, 2010, to file his habeas petition. In the case of a pro se prisoner like Nolan, his habeas petition is “deemed filed when submitted to prison authorities for mailing to the district court.” Morales–Rivera v. United States, 184 F.3d 109, 110–11 (1st Cir.1999).

Facts Relating to the Filing

It is undisputed that Nolan's petition and supporting memorandum were dated April 28, 2010, but they were not docketed by the court until July 29, 2010, 44 days after the deadline for Nolan to have filed his habeas petition. In light of these facts, the government questioned whether Nolan had, in fact, deposited his pleadings with the prison authorities in a timely manner. At the government's request, on June 15, 2011 this Court ordered the defendant to prove that he deposited the § 2255 petition with his institution in a timely manner, or to explain why equitable tolling should apply. Nolan was given 30 days to respond to the order. ( See Docket Entry 6/15/11). On June 22, 2011, Nolan filed a change of address notice with the Court (Docket No. 37), and a copy of the Court's order was sent to him again. As detailed below, although he never expressly addressed the circumstances surrounding his mailing of his habeas petition, he did indicate that he had requested documentation which he had not received from the prison authorities. In addition, the facts the defendant has proffered indicate that he is requesting that the doctrine of equitable tolling be applied to allow his habeas petition to be considered on the merits.

Specifically, on July 11, 2011, Nolan sent a letter to the Court requesting an additional 60 days to respond to the government's contention that his petition was not timely. (Docket No. 39). Therein he explained that he had not received the Court's June 15th order until July 7th, and that he had recently been moved. He also explained that he had been having difficulty obtaining information he needed, including “records from the clerk's office,” and that the problem was compounded by the fact that he was in lockdown for most of the day. As he explained:

defendant is housed in a twenty-three hour a day lockdown environment. There are roughly one-hundred eighty prisoners housed in this cell block, and there is one (1) electronic law library for the entire cell block. Prisoners are placed on a waiting list to utilize this law library, and afforded, at the most, two visits per month at one hour per visit. I would like to point out that as the law library is electronic this requires one to use a computer. So far, in three visits I have managed to log on three times, and crash the system one of those times. I am not computer literate.

(Docket No. 39).² On July 25, 2011, Nolan was given an additional 60 days, until September 26, 2011, to respond to the Court's request for information. ( See Docket Entry 7/25/11).

On September 1, 2011, Nolan submitted another handwritten letter to the Court, which was much less articulate than the first. (Docket No. 41). In this letter, he stated “[t]he people here gave me this paper for you on the time issue and they still don't give me what I ask for you.” ( Id. at 1). He asked for counsel to be appointed to assist him, or for another extension if he needed one. ( Id. at 3)....