Poe v. U.S.

• Decision Date: 06 November 2006
• Docket Number: No. 04-3697.,04-3697.
• Parties: Jimmie D. POE, Sr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

468 F.3d 473

Jimmie D. POE, Sr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 04-3697.

United States Court of Appeals, Seventh Circuit.

Argued April 11, 2006.

Decided November 6, 2006.

Robert J. Palmer, Mishawaka, IN, for Petitioner-Appellant.

Michael Jude Quinley, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Respondent-Appellee.

Before FLAUM, Chief Judge, and BAUER and SYKES, Circuit Judges.

SYKES, Circuit Judge.

On June 1, 1999, the Supreme Court held that the predicate drug law violations underlying a conviction for violating the "continuing criminal enterprise" ("CCE") statute, 21 U.S.C. § 848(c), are elements of the CCE offense and thus require jury unanimity with respect to each individual violation. Richardson v. United States, 526 U.S. 813, 824, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). About six weeks later, Jimmie Poe, Sr. raised a Richardson challenge to his 1996 CCE conviction by filing a habeas corpus petition under 28 U.S.C. § 2241. This was a procedural error. Under 28 U.S.C. § 2255 para. 5, a habeas petition "shall not be entertained" if the petitioner has failed to apply to his sentencing court for relief under 28 U.S.C. § 2255. The district court dismissed the habeas petition without prejudice and redirected Poe to § 2255. By this time, however, the applicable limitations period under § 2255 had expired. When Poe filed the appropriate § 2255 motion challenging his CCE conviction under Richardson, the district court denied it as untimely.

We issued a certificate of appealability on the Richardson issue and also asked the parties to address the matter of timeliness. We now affirm. Poe's motion was indeed untimely under § 2255 para. 6(3), which specifies that where the prisoner's claim is based on a right newly recognized by the Supreme Court, the one-year limitations period applicable to § 2255 motions runs from "the date on which the right asserted was initially recognized by the Supreme Court." 28 U.S.C. § 2255 para. 6(3); Dodd v. United States, 545 U.S. 353, 358-59, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). Poe's § 2255 motion was filed more than two years after Richardson was decided. Poe argues that his earlier but improper petition under § 2241—filed within the one-year limitations period— should have been construed as a § 2255 motion rather than dismissed, and on this basis asks us to deem his § 2255 motion timely. He also asserts that the "unique circumstances" doctrine should apply in this situation to allow him to escape the operation of the statute of limitations. We cannot accept either argument; neither finds support in the case law.

I. Background

Poe was convicted in 1996 of five counts of distributing marijuana or possessing it with intent to distribute (21 U.S.C. § 841(a)), two counts of attempting to possess marijuana with intent to distribute (21 U.S.C. § 846), and one count each of engaging in a continuing criminal enterprise (21 U.S.C. § 848(c)), conspiring to distribute marijuana (21 U.S.C. § 846), and being a felon in possession of a firearm (18 U.S.C. § 922(g)). Only the CCE conviction is at issue here. At Poe's trial the district court instructed the jurors that in order to find Poe guilty of violating the CCE statute, they must find (among other things) that he was guilty of at least two violations of 21 U.S.C. § 841(a)(1), which prohibits distributing illegal drugs or possessing them with intent to distribute. The court then told the jury: "You must unanimously find that the defendant committed at least two violations of the federal drug laws, but you do not have to agree on which two violations." (Emphasis added.) Poe's CCE conviction was affirmed on direct appeal.

The Supreme Court's June 1, 1999 decision in Richardson made it clear that the CCE jury instruction used at Poe's trial was erroneous; the district court should have required the jury to agree unanimously on which violations of the federal drug laws constituted Poe's continuing criminal enterprise. Richardson, 526 U.S. at 824, 119 S.Ct. 1707. Poe sought to avail himself of the holding announced in Richardson.¹ On July 16, 1999, he petitioned the district court for the Southern District of Illinois—the district in which he was convicted and sentenced and also in which he was incarcerated—for a writ of habeas corpus under § 2241. Although Poe's § 2241 petition is not part of the record on appeal, he asserts—and the government does not dispute—that he raised his Richardson jury instruction argument in that petition.

The § 2241 petition was pending for more than fourteen months before any action was taken on it. On September 19, 2000, the district court² entered a summary order dismissing Poe's habeas petition as procedurally improper. 28 U.S.C. § 2255 para. 5 (providing that a habeas petition "shall not be entertained" if the petitioner "is authorized to apply for relief by motion pursuant to this section" and "has failed to apply for relief, by motion, to the court which sentenced him"). The dismissal was without prejudice, and the court's order advised Poe that in order to collaterally attack his federal sentence, he must file a motion to vacate, set aside, or correct the sentence under § 2255, and directed the clerk to send Poe forms for filing a § 2255 motion.

Approximately nine months later, on June 18, 2001, Poe filed a § 2255 motion, once again raising the Richardson challenge to his CCE conviction. He supplemented the motion on July 27 with a legal memorandum detailing his Richardson argument. Poe's § 2255 motion was assigned to his sentencing judge and remained pending for more than twenty months before any action was taken. On March 17, 2003, the district court³ denied Poe's § 2255 motion as untimely. On April 1, 2003, Poe filed a motion under Rule 59(e), FED.R.CIV.P., to alter or amend the judgment. Sixteen months later, on August 18, 2004, the district court denied Poe's Rule 59 motion. The district court then declined to issue a certificate of appealability. On May 19, 2005, we granted a certificate of appealability specifically instructing the parties to brief the Richardson jury instruction issue and also to address the timeliness of Poe's § 2255 motion.

II. Discussion

This appeal presents only questions of law, so we review the district court's denial of Poe's § 2255 motion de novo. Fuller v. United States, 398 F.3d 644, 647 (7th Cir. 2005). Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a one-year limitations period applies to a federal prisoner's collateral challenge to his conviction or sentence by motion under § 2255. 28 U.S.C. § 2255 para. 6. As applicable to Poe's § 2255 motion, the one-year period began running on "the date on which the right asserted was initially recognized by the Supreme Court." 28 U.S.C. § 2255 para. 6(3); Dodd, 545 U.S. at 359, 125 S.Ct. 2478 ("[I]f this Court decides a case recognizing a new right, a federal prisoner seeking to assert that right will have one year from this Court's decision within which to file his § 2255 motion."). The Supreme Court decided Richardson on June 1, 1999, so Poe had until June 1, 2000, to file a timely § 2255 motion. He missed this deadline by more than a year, filing his § 2255 motion on June 18, 2001.

Recognizing the obvious lateness of his § 2255 motion, Poe suggests two reasons why we should count it as timely nonetheless. First, he argues that because his § 2241 habeas petition was the functional equivalent of a § 2255 motion, the district court should have construed it as a timely § 2255 motion. He cites Carter v. United States, 312 F.3d 832, 833 (7th Cir.2002), for the proposition that "a postconviction motion that is functionally a section 2255 motion should be treated as such however it is labeled."

But Carter and similar decisions that refer to this approach to postconviction motions do so in the context of preventing federal prisoners from circumventing AEDPA's requirement that they obtain permission from the court of appeals before filing a second or successive § 2255 motion. 28 U.S.C. § 2255 para. 8; Carter, 312 F.3d at 833; Henderson v. United States, 264 F.3d 709, 710 (7th Cir.2001) (noting that United States v. Evans, 224 F.3d 670 (7th Cir.2000), held "that a postconviction motion that is functionally, substantively, a motion under section 2255 . . . should be treated as such, even if labeled differently, . . . for purposes of determining whether a subsequent section 2255 motion should be deemed a successive such motion") (emphasis added). Poe cites no case from this or any other court—and we are aware of none—that supports a rule requiring district courts to construe equivalent post-conviction filings as § 2255 motions in order to help prisoners comply with AEDPA's one-year limitations period.⁴

Indeed, this court has rejected an equitable tolling argument in this context in Nolan v. United States, 358 F.3d 480, 484-86 (7th Cir.2004). Poe acknowledges Nolan and says he is not arguing for equitable tolling.⁵ But his argument and the one advanced in Nolan are essentially the same regardless of doctrinal nomenclature. Nolan had filed a motion for a new trial pursuant to Rule 33, FED.R.CRIM.P., just before the expiration of the applicable AEDPA limitations period. After the Rule 33 motion was denied, he filed a § 2255 motion, which was dismissed as untimely. He invoked equitable tolling, arguing that the Rule 33 motion should be construed as a § 2255 motion by application of the decisions cited above that require postconviction motions that are substantively equivalent to § 2255 motions to be treated as § 2255 motions—regardless of label—for purposes of AEDPA's rules governing second or successive motions.

We rejected this argument, noting that Nolan chose to file a Rule 33 motion, not a § 2255 motion, within AEDPA's limitations period. "From the point of view of timeliness (as opposed to the `successive...