Robinson v. U.S., Case No. 5:07 CV 02092.

• Decision Date: 23 July 2008
• Docket Number: Case No. 5:01 CR 00259.,Case No. 5:07 CV 02092.
• Parties: James H. ROBINSON, Petitioner v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of Ohio

582 F.Supp.2d 919

James H. ROBINSON, Petitioner v. UNITED STATES of America, Respondent.

Case No. 5:07 CV 02092.

Case No. 5:01 CR 00259.

United States District Court, N.D. Ohio, Eastern Division.

July 23, 2008.

COPYRIGHT MATERIAL OMITTED

Charles W. Zepp, Porter, Wright, Morris & Arthur, Cleveland, OH, Damian A. Billak, Youngstown, OH, for Petitioner.

Nancy L. Kelley, Office of the U.S. Attorney, Northern District of Ohio, Akron, OH, for Respondent.

MEMORANDUM OF OPINION AND ORDER DENYING PETITIONER RELIEF UNDER 28 U.S.C. § 2255.

LESLEY WELLS, District Judge.

Petitioner James Howard Robinson ("Mr. Robinson") seeks to vacate or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 99: 1 CR 259). In his three-paragraph pleading, Mr. Robinson maintains, through counsel, that his "sentence was imposed in violation of the Constitution or laws of the United States and is subject to collateral attack, including a claim of ineffective assistance of counsel." Id. The government responded to Mr. Robinson's petition by arguing that it was both untimely and insufficient. (Doc. 104). Mr. Robinson's counsel filed a reply in which he argued, as Mr. Robinson did on direct appeal that, the Petitioner's sentence should not have contained a career offender enhancement and his counsel was ineffective for failing to seek a downward departure from the Court under U.S.S.G. § 4A1.3. (Doc. 107). For the reasons set forth below, Mr. Robinson's petition for relief under 28 U.S.C. § 2255 will be denied.

I. Background

On 13 June 2001, Mr. Robinson was named in all counts of a three-count Indictment, along with two co-defendants, for conspiracy to distribute more than 50 grams of cocaine base and distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) & 846. (Doc. 9). On 14 November 2001, the government filed an Information, pursuant to 21 U.S.C. § 851, notifying Mr. Robinson of its intent to seek an enhanced statutory sentence, under 21 U.S.C. § 841(b)(1)(C), predicated on the Petitioner's prior felony drug trafficking conviction in Ohio Case No. 92-07-1634, and Federal Case No. 5: 95 CR 00142-016.¹ (Doc. 42). On 15 November 2001, Mr. Robinson pleaded guilty to conspiracy to distribute cocaine base as charged in Count One of the Indictment. (Docs. 45, 46).

Prior to his sentencing hearing, Mr. Robinson's counsel filed several motions on his client's behalf, including: brief in objection to Pre-sentence Report concerning drug type (Doc. 54); request for appointment of an expert (Doc. 59); motion for an order of transfer of drugs (Doc. 61); brief in objection to classification as a career offender (Doc. 63); and, sentencing memorandum (Doc. 67). On 20 December 2002, pursuant to a hearing, Mr. Robinson was sentenced to a term of 210 months in the Bureau of Prisons, a five year term of supervised release, and a special assessment of $100.00. On 23 December 2002 the Court adopted the Pre-sentence Investigation Report's ("PSR") conclusion that Mr. Robinson should be sentenced in accordance with his status as a career offender. (Doc. 70).

Before the Sixth Circuit Court of Appeals Mr. Robinson timely filed an appeal of his plea, his sentence, his status as a career offender, and forwarded a claim of ineffective assistance of counsel. (Doc. 73). The Sixth Circuit denied the Petitioner's appeal on 28 March 2005 in Goodrum v. United States, 126 Fed.Appx. 713 (6th Cir. 2005). (Docs. 95, 96). On 3 October 2005, the United States Supreme Court denied Mr. Robinson's petition for a writ of certiorari. (Doc. 98). On 6 October 2006, Mr. Robinson filed the instant § 2255 motion through counsel, alleging in toto that the Petitioner's "sentence was imposed in violation of the Constitution or laws of the United States and is subject to collateral attack, including a claim of ineffective assistance of counsel." (Doc. 99).

Pursuant to his written Plea Agreement, Mr. Robinson pled guilty to conspiracy to possess with intent to distribute at least 50 grams of cocaine base with a Base Offense Level of 32. (Doc. 46). Mr. Robinson stipulated in his Plea Agreement to having been previously convicted of a felony drug offense as alleged in the government's Information and the Petitioner waived any challenge to the prior conviction and sentencing enhancement under the provisions of 21 U.S.C. § 841(b). Pursuant to the Plea Agreement, the parties agreed to a Base Offense Level of 32. The parties also agreed that the Petitioner was subject to the Career Offender adjustment, pursuant to U.S.S.G. § 4B1.1.² Pursuant to the Sentencing Guideline enhancements in Chapter Four, Mr. Robinson's adjusted offense level was 37. (PSR ¶ 31). The Court applied a three-level departure for acceptance of responsibility and a two-level departure for "substantial assistance" to the government. Mr. Robinson's resulting Total Offense Level was 32. Pursuant to § 4B1.1 the Petitioner's Criminal History Category is VI, which placed him in the Sentencing Guideline range of 210 to 262 months. The Court sentenced Mr. Robinson to a period of 210 months imprisonment with the Bureau of Prisons to be followed by five years of supervised release. (Doc. 68, 71).

II. Law and Argument

Section 2255 permits a prisoner in custody under sentence of a federal court to move the court that imposed the sentence to vacate, correct, or set aside that sentence, on the grounds:

the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

28 U.S.C. § 2255. The movant has the burden of establishing any claim asserted in the petition. See Bowers v. Battles, 568 F.2d 1, 5 (6th Cir.1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 409 (1978).

Where a constitutional error is alleged, in order to obtain relief under 28 U.S.C. § 2255 the record must reflect a constitutional error of such magnitude that it had a substantial and injurious effect or influence on the proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999). In order to prevail on a § 2255 motion alleging non-constitutional error, a petitioner must show a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Riggs v. United States, 209 F.3d 828, 831 (6th Cir.), cert. denied, 531 U.S. 884, 121 S.Ct. 200, 148 L.Ed.2d 140 (2000). Thus, "[a] motion brought under § 2255 must allege one of three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Weinberger v. United States, 268 F.3d 346, 351 (6th Cir.2001), cert. denied, 535 U.S. 967, 122 S.Ct. 1433, 152 L.Ed.2d 377.

A. Timeliness and Equitable Tolling

As an initial matter, the Court addresses the timeliness of Mr. Robinson's petition for relief. The timeliness of the Petitioner's motion is governed by paragraph 6 of 28 U.S.C. § 2255, which provides as follows:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall 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.

"[F]or purposes of collateral attack, a conviction becomes final at the conclusion of direct review." Johnson v. United States, 246 F.3d 655, 657 (6th Cir.2001) (citations omitted). Except in circumstances that are not presented here, a motion to vacate under 28 U.S.C. § 2255 must be filed within one year of "the date on which the judgment of conviction becomes final." Mr. Robinson's conviction became final no later than 3 October 2005, the date the United States Supreme Court denied his petition for a writ of certiorari. (Doc. 98). His § 2255 motion, filed by counsel on Friday, 6 October 2006, exceeded the limitations period by three days. Accordingly, Mr. Robinson's counsel's "bare-bones" filing was untimely.

Mr. Robinson's counsel, nevertheless, urges the application of equitable tolling to the limitations period upon the grounds of the Petitioner's "lack of notice or constructive knowledge of the filing requirement and the absence of prejudice to the Government." (Doc. 107, p. 2).

This Circuit recognizes that the statute of limitations in § 2255 petitions is subject to equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir.2001). The doctrine of equitable tolling is, however, used "sparingly"-typically "only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control." Jurado v. Burt, 337 F.3d 638, 642 (6th Cir.2003).

Courts in this Circuit consider five factors when deciding whether to apply the doctrine of equitable tolling in a § 2255 case:

(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his...