Owens v. U.S.

• Decision Date: 30 December 2002
• Docket Number: No. CIV.A.01-10061-WGY.,CIV.A.01-10061-WGY.
• Citation: 236 F.Supp.2d 122
• Parties: Dwayne OWENS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Massachusetts

236 F.Supp.2d 122

Dwayne OWENS, Petitioner, v. UNITED STATES of America, Respondent.

No. CIV.A.01-10061-WGY.

United States District Court, D. Massachusetts.

December 30, 2002.

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Peter B. Krupp, Laurie and Krupp, LLP, Boston, MA, for Dwayne Owens, Petitioner.

Allison D. Burroughs, United States Attorney's Office, Theodore B. Heinrich, U.S. Attorney's, Boston, MA, for USA, Respondent.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

The petitioner, Dwayne Owens ("Owens"), moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence for various criminal offenses including murder, cocaine distribution, racketeering, firearm possession, and money laundering. Owens asserts eleven arguments alleging, inter alia, violations of his Fourth, Fifth, and Sixth Amendment rights.

I. Background

On December 19, 1995, a federal grand jury indicted Owens for various violations of federal law.¹ The indictment generally alleged that Owens headed a cocaine distribution ring, and committed various crimes including murder in furtherance of the objects of the drug ring. On March 27, 1997, a federal jury delivered a verdict finding Owens guilty of murder, conspiracy to murder, racketeering, interstate travel in aid of racketeering, conspiracy to possess and distribute cocaine, using a firearm during commission of a violent crime, possession of a firearm while a fugitive of justice, and money laundering. On June 25, 1997, Owens was sentenced to life imprisonment on five counts and the maximum statutory sentence on all remaining counts.²

On appeal, Owen claimed that several motions to suppress evidence should have been granted by the Court, that there was insufficient evidence to support his RICO convictions, and that the Court issued flawed jury instructions. See United States v. Owens, 167 F.3d 739, 743 (1st Cir.1999). The First Circuit affirmed Owens' conviction. Id. at 756. Owens subsequently petitioned the Supreme Court for certiorari, which was denied. 528 U.S. 894, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999).

Owens now brings a motion pursuant to 28 U.S.C. § 2255. In his motion, Owens asserts eleven principal arguments for over-turning his convictions. In summary, Owens argues that: (1) the courtroom was closed during a portion of jury selection, violating his Sixth Amendment rights; (2) the trial was tainted because the Court swore in a new Assistant United States Attorney during the trial; (3) the government violated its Brady obligations to Owens' prejudice; (4) Owens' murder and murder conspiracy convictions were obtained only as a result of the Brady violations; (5) the "murder in aid of racketeering" jury instructions were erroneous; (6) all Owens' convictions were the result of ineffective assistance of counsel; (7) the life sentence associated with the conspiracy to distribute cocaine conviction violates Apprendi; (8) the life sentence associated with the racketeering conviction violated Apprendi; (9) the life sentence associated with murder in aid of racketeering violates the due process clause; (10) the life sentence on the interstate travel in aid of racketeering violates the ex post facto clause; and (11) Owens' convictions were upheld as a result of ineffective assistance of appellate counsel.

II. DISCUSSION

A. Timeliness under 28 U.S.C. § 2255

As a threshold matter, the Court must assess whether Owens' petition, filed on January 11, 2001, is timely under section 2255's one year statute of limitations. The question for the Court is whether January 11, 2001, fell within one year of "the date on which [Owens'] judgment of conviction [became] final." 28 U.S.C. § 2255(1) (2002).

Within the context of section 2255 motions, a prisoner's conviction becomes final when the Supreme Court denies an application for certiorari. Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Rogers v. United States, 180 F.3d 349, 352 (1st Cir.1999). Thus, Owens' judgment of conviction became final on October 4, 1999, the date that the Supreme Court denied certiorari. Owens v. U.S., 528 U.S. 894, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999). Accordingly, any petition filed on or before October 4, 2000, would be within the statute of limitations prescribed by section 2255.

Owens' petition, filed on January 11, 2001, is therefore not within the one year statute of limitations. On August 28, 2000, however, this Court had entered an order excluding the time between April 18, 2000, and August 28, 2000, from the statute of limitations period within which Owens could file a petition pursuant to section 2255. United States v. Owens, No. 95-10397-WGY, slip op. (D.Mass. Aug. 28, 2000). If the Court's order excluding four months and ten days from the statute of limitations calculation is valid, then any petition filed before February 14, 2001 — including Owens' motion — would be timely. The government asserts that it is not within the power of the Court to exclude time from the statute of limitations calculations. See Resp. to Pet'r's Mot. [Docket No. 18] at 2-3.

Irrespective of whether the Court could appropriately exercise such power, however, the Court might equitably toll the statute of limitations in an appropriate situation. While never directly deciding the issue, the First Circuit has several times indicated that Supreme Court jurisprudence potentially leaves available equitable tolling. See Neverson v. Bissonnette, 261 F.3d 120, 126-27 (1st Cir.2001) (discussing Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)); Delaney v. Matesanz, 264 F.3d 7, 13 (1st Cir.2001) (discussing Duncan). In Neverson, the First Circuit remanded for determination as to whether equitable tolling was required in that particular case and, if so, whether equitable tolling is generally available in habeas corpus litigation. Neverson, 261 F.3d at 127. This Court considered that issue on remand, and concluded both that equitable tolling was permissible and that Neverson was so entitled. Neverson v. Bissonnette, No. 98-11719, 1999 WL 33301665, *2-4 (D.Mass. July 26, 2002); see also Wojcik v. Spencer, 198 F.Supp.2d 1, 2 (D.Mass.2002) (Saris, J.) (holding equitable tolling available); Testa v. Bissonnette, No. CIV.A. 01-11609-DPW, 2002 WL 31194869 at *6 (D. Mass. Sept. 27, 2002) (Woodlock, J.) (same). Accordingly, equitable tolling is available and this Court need only determine whether it warrants application here.

Equitable tolling is "the exception rather than the rule," available "only in extraordinary circumstances." Delaney, 264 F.3d at 14. Equitable tolling is generally only available "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (citations omitted) (discussing equitable tolling generally); Delaney, 264 F.3d at 15 (citing Irwin). Furthermore, equitable tolling will extend the statute of limitations only "for such time as [is] reasonably necessary to conduct the necessary inquiry." Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990).

In this instance, Owens is without fault. If the Court improperly excluded time in this case, Owens has relied on an order of this Court to his detriment. Whatever else may be said of equitable tolling, certainly a litigant who has been led to rely on an order of the Court should be entitled to equitable tolling if, after such reliance, it is discovered that the Court lacked authority to issue such an order. This is the quintessential equivalent of filing a defective pleading during the limitations period. Accordingly, this Court holds that Owens should be granted equitable tolling of the statute of limitations.

B. Apprendi Violations

Owens presses several arguments that devolve from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The world of criminal sentencing in the United States underwent a significant sea change in 2000. The Supreme Court held in Apprendi that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. Considerable litigation has ensued as litigants seek to define the contours of Apprendi. See, e.g., United States v. Robinson, 241 F.3d 115 (1st Cir. 2001); United States v. White, 240 F.3d 127 (2d Cir.2001); United States v. Pressler, 256 F.3d 144 (3d Cir.2001); United States v. Angle, 254 F.3d 514 (4th Cir. 2001); United States v. McWaine, 290 F.3d 269 (5th Cir.2002); United States v. Bandy, 239 F.3d 802 (6th Cir.2001); United States v. Jones, 245 F.3d 645 (7th Cir. 2001); United States v. Sturgis, 238 F.3d 956 (8th Cir.2001) United States v. Tighe, 266 F.3d 1187 (9th Cir.2001); United States v. Cernobyl, 255 F.3d 1215 (10th Cir.2001); United States v. Sanchez, 269 F.3d 1250 (11th Cir.2001); United States v. Samuel, 296 F.3d 1169 (D.C.Cir.2002).

Notwithstanding the multiplicity of Apprendi issues, courts seem to agree that Apprendi is not retroactively applicable presently. In Murray v. United States, Civ.A.01-11217-WGY, 2002 WL 982389 (D.Mass. May 10, 2002), this Court examined retroactivity, although the First Circuit has not yet ruled on the issue. Gonzalez-Gonzalez v. United States, 49 Fed. Appx. 322, 324 (1st Cir.2002) (unpublished opinion) (the retroactive applicability of Apprendi is "a matter on which [the First Circuit] take[s] no view");³ see also Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir.2000) (noting that the Supreme Court did not determine in Apprendi whether the rule created therein would apply...