United States v. Carlsen

• Decision Date: 10 April 2012
• Docket Number: No. CR-07-31-GF-SEH,CV-09-33-GF-SEH,CR-07-31-GF-SEH
• Parties: UNITED STATES OF AMERICA, Plaintiff/Respondent, v. CODY GORDON CARLSEN, Defendant/Movant.
• Court: U.S. District Court — District of Montana

UNITED STATES OF AMERICA, Plaintiff/Respondent,

v.CODY GORDON CARLSEN, Defendant/Movant.

Nos. CR-07-31-GF-SEH

CV-09-33-GF-SEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION

Date: April 10, 2012

ORDER

INTRODUCTION

De fendant/Mo vant Cody Carl sen (Carlsen) has moved to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, On August 30, 2011, the Ninth Circuit Court of Appeals remanded the matter for an evidentiary hearing on the issue of equitable tolling. The Ninth Circuit also required the Court, even if the facts do not support equitable tolling, to "state what sentence it would have imposed if it had granted Carlsen's § 2255 motion." Mem. at 8, United States v. Carlsen. No, 09-35857 (9th Cir. July 6, 2011) (per curiam) (unpublished mem. disp.) (Doc. 47).

The evidentiary hearing was held over two days, on November 9 and December 15, 2011, The matter is ripe for resolution,

DISCUSSION

Carlsen's § 2255 motion alleges ineffective assistance of counsel arising from his attorney failing to assert that U.S.S.G. § 5G1.3(b) recommended imposition of a concurrent sentence under the circumstances of his offense, as well as a reduction of the sentence to account for time spent in federal custody prior to the sentencing date. Mot. § 2255 (Doc. 32-1) at 1-6, 8. He also alleges ineffective assistance in connection with his decision to plead guilty and for counsel's failure to file a motion to suppress the firearms found in his possession. Id. at 6, 7. However, he has not alleged any specific facts in support of the latter claims, nor has counsel moved to amend the motion. Accordingly, those claims will be disregarded.

I. Timeliness of the § 2255 Motion

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year limitations period applies to motions for postconviction relief filed by federal prisoners under 28 U.S.C. § 2255, and to state prisoners seeking relief under 28 U.S.C. § 2254. The date on which the limitations period commences is set by statute. 28 U.S.C. §§ 2255(f), 2244(d)(1); Lee v. Lampert 653 F.3d 929, 933 (9th Cir, 20 i 1) (en banc), "[A] court must first determine whether a petition wasuntimely under the statute itself before considering whether there is a need for equitable tolling, Jorss v. Gomez. 311 F.3d 1189, 1192 (9th Cir. 2003),

A state or federal prisoner who files out-of-time may be entitled to equitable tolling¹ "only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida. _ U.S. _, 130 S. Ct. 2549, 2562 (2010) (internal quotation marks omitted); see also Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283 (9th Cir. 1997),² cited with approval in Holland. 130 S. Ct. at 2564: United States v. Battles. 362 F.3d 1195,1196 (9th Cir. 2004) (holding that equitable tolling applies to § 2255 motions in the same way it applies to state petitions under §§ 2254 and 2244). Extraordinary circumstances must "proximately cause[] the late filing." Still man v. LaMarque. 319 F.3d 1199, 1203 (9th Cir. 2003). The prisoner bears the burden of showing that equitable tolling is appropriate, Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).

Carlsen claims that he is entitled to equitable tolling because his lack of access to legal resources or his trial counsel's conduct, or both, constituted an '"extraordinarycircumstance" that prevented him from filing on time. Although Carlsen apparently concedes that his motion is untimely under the statute, some of his equitable tolling arguments might be said to support an alternative commencement date for the limitations period under 28 U.S.C. § 2255(f). Therefore under Jorss. the Court will consider both the commencement date and equitable tolling.

A. Statutory Commencement Date

28 U.S.C. § 2255(f) defines the date on which the limitations period begins to run:

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.

The Court of Appeals' recent en banc decision in Lee follows Holland in distinguishing these "triggering events" from facts that may support equitable tolling.

Lee. 653 F.3d at 933.

Generally, a § 2255 motion must be filed within one year of the date the prisoner's conviction becomes final. 28 U.S.C. § 2255(f)(1). Judgment was entered against Carlsen on November 15,2007. Minutes (Doc. 28), Carlsen's opportunity for direct appeal was exhausted when the time to file a notice of appeal expired, on November 29, 2007. Fed. R. App. P. 4(b)(1)(A)(i) (2007); Clay v. United States. 537 U.S. 522, 532 (2003); Griffith v. Kentucky. 479 U.S. 314, 321 n. 6 (1987), If the general rule of § 2255(f)(1) applies, the limitations period was triggered on November 29,2007. Fed. R. Civ. P. 6(a)(1)(A); Patterson v. Stewart. 251 F.3d 1243, 1246-47 (9th Cir. 2001).

An alternative start date might apply if, at the time his conviction became final, Carlsen was unable to file anything due to "an impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(f)(2). The record clearly establishes that no such alternative date applies here.

i). Access to Legal Resources

The Constitution requires prisons and jails to provide prisoners with legal information sufficient to permit them to access the courts for the purposes of challenging their convictions or their conditions of confinement. Access may takethe form of legal advice from persons trained in the law or law libraries containing the pertinent information, but adequate resources must include (1) "a source of current legal information ... so that prisoners could learn whether they have claims at all, as where new court decisions might apply retroactively to invalidate convictions " Bounds v. Smith. 430 U.S. 817, 826 n.14 (1977); (2) substantive and procedural information to allow prisoners to file "original actions seeking new trials, release from confinement, or vindication of fundamental civil rights" and to "raise heretofore unlitigated issues" in their cases, Bounds. 430 U.S. at 827; (3) procedural information sufficient to enable prisoners to "avoid being thrown out of court" for failure to comply with basic requirements such as the limitations period, Whalem/Hunt v. Early. 233 F.3d 1146, 1149 (9th Cir. 2000) (en banc) (per curiam) (Tashima, J., concurring); and (4) reasonable access to case files, including "appellate briefs previously written on their behalf, trial transcripts, and often intermediate appellate court opinions to use in preparing petitions for further review," Bounds. 420

However, "delays in receiving legal materials or legal assistance" for "as long as 16 days"³ "are not of constitutional significance," "so long as [the delays] are theproduct of prison regulations reasonably related to legitimate penological interests," Lewis v. Casey. 518 U.S. 343, 362 (1996), even if those delays actually prevent prisoners from filing timely collateral attacks. Id. at 362. Intermittent access to legal information is adequate access, provided prisoners retain the general capacity to research and present their cases. Similarly, only if a prisoner's transfers among detention centers "altogether prevented him from presenting his claims in any form, to any court," Ramirez v. Yates. 571 F.3d 993, 1001 (9th Cir. 2009) (emphasis in original) is the prisoner is entitled to a later start date under § 2255(f)(2), This is "a far higher bar than that for equitable tolling." Ramirez. 571 F.3d at 1000.

With the above precepts in mind, and based on the parties' exhibits and the testimony at the hearing, the Court finds the facts established to be:

1. Carlsen had no "prose order." Consequently, according to the testimony of Keith Kaululaau, operations chief at the Cascade County Detention Facility, he would not have been given access to that facility's legal resources had he requested it. Seealso Def. Ex, D (Doc. 66-1). Carlsen was housed there, however, only until November 26, 2007, Gov't Ex. 1, which was before his conviction became final.

2. Carlsen was housed at Crossroads Correctional Center in Shelby, Montana, from November 26, 2007, until December 4, 2007. Gov'tEx. 1. Correctional Officer John Weaver, chief of unit management at that facility, testified that both Title 28 of the United States Code, which contains 28 U.S.C. § 2255, and the United States Sentencing Guidelines were available at Crossroads, either in book form or on CD. Although Carlsen testified that the librarian told him the facility's contract required it to provide only state legal materials, not federal, he produced no evidence that this statement meant the library did not have federal materials. Any such claim was contradicted by Chief Weaver. Further, Carlsen produced no evidence showing that he sought access to the law library at Crossroads while he was there. Nor did he file a grievance alleging lack of access or lack of federal law. Carlsen failed to carry his burden of proof. By contrast, the United States clearly established that Crossroads provided access and federal materials.

3. On December 4,2007, Carlsen was returned to Cascade County, where he waited three days for transport to FTC Oklahoma City. He was then detained in Oklahoma, awaiting further

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