U.S. v. Martin

• Decision Date: 27 May 2005
• Docket Number: No. 04-2734.,04-2734.
• Parties: UNITED STATES of America, Appellee, v. Kenneth Ray MARTIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1089

408 F.3d 1089

UNITED STATES of America, Appellee, v. Kenneth Ray MARTIN, Appellant.

No. 04-2734.

United States Court of Appeals, Eighth Circuit.

Submitted: February 15, 2005.

Filed: May 27, 2005.

Counsel who presented argument on behalf of the appellant was Blair A. Bennett of Des Moines, IA.

Counsel who presented argument on behalf of the appellee was Cliff Wendel, AUSA, of Des Moines, IA. Appearing on appellee's brief was Shannon Olson.

Before MELLOY, HEANEY, and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

Kenneth Ray Martin, a federal prisoner, appeals the district court's denial of his motion to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C § 2255. The court found the motion untimely and that Martin presented no circumstances to excuse its tardiness. We disagree and therefore reverse.

BACKGROUND

None of the facts relevant to this appeal are in dispute. Following a jury trial, Martin was convicted of conspiracy to distribute methamphetamine and possession of methamphetamine with intent to distribute. He was sentenced to 121 months of imprisonment, to be followed by 60 months of supervised release. He appealed, and by opinion dated December 12, 2001, this court affirmed. United States v. Martin, 274 F.3d 1208 (8th Cir.2001). In his direct appeal, he raised the issue of ineffective assistance of his trial counsel. We advised Martin that ineffective assistance claims are "`best evaluated on the basis of facts developed outside the original record,' and are therefore `more properly raised in a habeas corpus petition brought under 28 U.S.C. § 2255.'" Id. at 1210 (quoting United States v. Christians, 200 F.3d 1124, 1126 (8th Cir.1999)). Martin did not petition the Supreme Court for a writ of certiorari to review this decision. Accordingly, Martin's one-year period to file a § 2255 motion in district court began running on March 12, 2002. See Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) ("[F]or federal criminal defendants who do not file a petition for certiorari . . . on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires."); Sup.Ct. R. 13.1 (stating petition for certiorari must be filed within ninety days of judgment).

In May of 2002, Martin asked his appellate attorney, George Lasko, to file a § 2255 motion alleging ineffective assistance of his trial counsel. Lasko agreed to do so, but advised Martin to wait until late 2002 so that they could benefit from any supportive case law that was issued in the interim. On August 11, 2002, Martin wrote to Lasko about the § 2255 motion. Martin sent Lasko documentation in support of the motion, and requested Lasko to return copies because Martin was unable to make them in prison. Martin sent Lasko a pro se § 2255 motion in September of 2002. When Martin spoke to Lasko in November of 2002, Lasko commented that Martin's pro se motion "looked good but needed some minor changes." (J.A. at 22.) During this conversation, Martin voiced his preference to have the motion filed soon, since some of his fellow inmates told him there was a one-year deadline on § 2255 motions. Lasko "responded that the inmates didn't know what they were talking about, and that [Martin] shouldn't worry." (Id.) Lasko did not return any of Martin's documents or forward copies to him.

During the fall and winter 2002 and 2003, Martin's wife was also trying to communicate with Lasko. Audrey Martin "made approximately forty telephone calls to Lasko's office to inquire about the [§ 2255] motion," but Lasko was seldom responsive. (Dist. Ct. Order at 3.) She was able to speak with Lasko on November 23, 2002, when she paid him an additional $1,500 for Martin's case. Lasko told Audrey Martin that the § 2255 motion would be filed shortly after Thanksgiving. Audrey Martin saw Lasko again on December 24, 2002, and Lasko told her that they would be "in court" in anywhere from thirty to sixty days. (J.A. at 20, 24.) Lasko further told Audrey Martin that there was no deadline for filing § 2255 motions.

In either December of 2002 or January of 2003, Martin was able to speak with Lasko by telephone. Martin asked Lasko about the § 2255 motion, and Lasko stated that Martin "would be seeing some kind of relief in the near future," (id. at 22), either by way of a sentence reduction or a new trial, (id. at 20). This was Martin's last conversation with his attorney. From that time through May of 2003, Lasko refused Martin's calls, refused to speak with or return the telephone calls of any other members of Martin's family, failed to appear for two scheduled appointments with Martin's wife, and failed to return any of Martin's supporting documents to him.

Martin's filing deadline passed on March 12, 2003, and Lasko had still not filed the § 2255 motion. Martin sent Lasko a letter dated March 16, 2003 expressing his dissatisfaction with Lasko. Martin noted that over one year had passed since his conviction, and told Lasko that he hoped that Lasko was correct in his belief that there was "no time restriction to an initial 2255 motion." (Id. at 20.) Because Lasko had not made Martin's case a priority, Martin requested that Lasko provide Martin with all of the documents in Martin's case within fifteen days. Lasko did not respond to this demand.

By letter dated May 19, 2003, Martin again tried to contact Lasko. He reiterated his frustration about not receiving word from Lasko for several months, as well as uncertainty about the status of his case:

Since early on in January of [2003], I have not been able to communicate with you by phone. I have some concerns that the time to file a 2255 has expired. I would like you to send a letter confirming that you have filed a 2255 or not. I cannot wait any longer. If my case has not been filed, please send me a copy of everything you have so I can file immediately for myself. My health is getting worse and now my daughter has become very ill also. I need some answers and some direction.

(May 19, 2003 letter from Martin to Lasko.)¹ Lasko did not respond to this letter.

After months of trying, Audrey Martin was able to reach Lasko in May of 2003. Lasko told her that he had filed papers in Martin's case. She responded that according to the court record, nothing had been filed, and that the clerk's office informed her documents are logged within forty-eight hours of receipt. Lasko told her that the courts "always say that." (J.A. at 25.) She asked him for file-stamped copies of the documents he claimed to file, but he did not provide them.

In June of 2003, both Martin and his wife filed complaints with and sent letters to the State Bar of California, where Lasko was licensed to practice. Both letters recounted Lasko's failure to communicate with the Martins, and asked for the Bar's assistance in determining the status of Martin's case. The complaints triggered an investigation into Lasko's conduct, which culminated in his resignation on July 16, 2003.

In early July of 2003, Martin prepared and filed a pro se motion for an extension of time to file his § 2255 motion in district court, stating that the motion had not been filed because of Lasko's misconduct.² Martin also sought an order from the court directing Lasko to return Martin's paperwork so that Martin could prepare the § 2255 motion. By order dated July 23, 2003, the district court denied Martin's motions, but advised Martin to file a § 2255 motion within fourteen days. Martin complied by filing a pro se § 2255 motion on August 1, 2003. The district court denied the motion as untimely, finding that equitable tolling did not excuse Martin's late filing. This appeal followed.

ANALYSIS

Our initial task is to decide, as a matter of first impression, whether the doctrine of equitable tolling is available to Martin as a § 2255 movant. While we have decisively held that equitable tolling applies to state petitions for habeas corpus brought pursuant to 28 U.S.C. § 2254, we "have yet to consider whether equitable tolling can apply to a § 2255 petition." United States v. Bell, 68 Fed.Appx. 762, 763 n. 2 (8th Cir.2003) (unpublished decision) (citing Paige v. United States, 171 F.3d 559, 561 (8th Cir.1999)). We now hold that it does. The analysis recently presented by the Ninth Circuit is eloquently persuasive in this regard:

[Sections 2254 and 2255] have the same operative language and the same purpose. We fail to see any reason to distinguish between them in this respect. Other courts of appeals have noted the congruence. See United States v. Riggs, 314 F.3d 796, 799 n. 6 (5th Cir.2002) (holding that for purposes of equitable tolling, the sections are interpreted similarly); Green v. United States, 260 F.3d 78, 82 (2d Cir.2001) (holding that § 2255 is similar to § 2254 and that equitable tolling is similarly available); Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir.2001) (holding that equitable tolling applies to § 2255); United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.2000) (holding that the § 2255 time limitation is subject to equitable tolling); United States v. Willis, 202 F.3d 1279, 1281 n. 2 (10th Cir. 2000) (holding that there is no reason to treat the two sections differently); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999) (stating that there is no obvious reason to treat the sections differently-they are both garden variety statutes of limitations). Thus, we now specifically declare what must seem obvious to many: The statute of limitations contained in § 2255 is subject to equitable tolling.

United States v. Battles, 362 F.3d 1195, 1196 (9th Cir.2004).

The government directs us to our statement in Paige that at least one circuit had concluded that equitable tolling applied in state habeas petitions filed pursuant to § 2254 but not their federal § 2255 counterparts. See Paige, 171 F.3d at 561 (citing Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir.1998))....