United States v. Denny

• Decision Date: 24 September 2012
• Docket Number: No. 11–2029.,11–2029.
• Citation: 694 F.3d 1185
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Travis DENNY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

694 F.3d 1185

UNITED STATES of America, Plaintiff–Appellee,

v.Travis DENNY, Defendant–Appellant.

No. 11–2029.

United States Court of Appeals,Tenth Circuit.

Sept. 24, 2012.

Submitted on the briefs: ^*

James C. Loonam, Assistant Federal Public Defender, Albuquerque, NM, for Defendant–Appellant.

Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Travis Denny, a federal inmate, seeks a certificate of appealability (COA) to allow him to appeal the district court's dismissal of his motion for relief under 28 U.S.C. § 2255. See28 U.S.C. § 2253(c)(1)(B) (COA required to appeal dismissal of § 2255 motion). The court ruled that his motion was time-barred under the one-year limitations period of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See id. § 2255(f). Most of Defendant's challenges to that ruling are routine, but he raises a novel claim based on the AEDPA provision that delays the start of the limitations period until “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence,” id. § 2255(f)(4). He argues that he should be given additional time because he discovered the pertinent facts only by exercising extraordinary diligence. We grant a COA on the timeliness issue but affirm the district court.

I. BACKGROUND

The magistrate judge conducted an evidentiary hearing on the timeliness of Defendant's § 2255 motion. We take the following from the testimony at the hearing and the record on appeal.

Defendant was charged in the United States District Court for the District of New Mexico with possession with intent to distribute 500 or more grams of cocaine, see21 U.S.C. § 841(a)(1) and (b)(1)(B), after a federal agent seized cocaine from his compartment on a sleeper train. See United States v. Denny, 441 F.3d 1220, 1221 (10th Cir.2006). His motion to suppress the cocaine was granted by the district court, but we reversed on appeal. See id. Defendant then pleaded guilty to the charge.

On September 26, 2007, Defendant was sentenced to 240 months' imprisonment, a substantial downward variance from the guideline range of 324 to 405 months. Before the marshals escorted him from the courtroom, he had a brief conversation with his then-counsel, Joe Romero. He told Romero that he wished to appeal. Romero responded that it would be unwise to appeal because he could ultimately receive an even longer sentence if the government also decided to appeal the downward variance. The result, as the magistrate judge found, was that “Defendant left the courthouse believing an appeal would be filed, and Mr. Romero left the courthouse believing he had dissuaded his client from pursuing an appeal.” R. Vol. 1, at 88.

Not having received any communication from Romero about his appeal, Defendant, while in prison, called Romero's office in January or February of 2008 and learned that Romero was on military duty at Guantanamo Bay, Cuba. Romero had wound down his practice, retaining only a part-time paralegal. She forwarded emails to him, sent him a weekly log of his mail, and helped two other attorneys who rented space in the same building and had taken over some of his cases. Romero admitted that he “didn't have the most reliable system in the world while [he] was gone.” Id., Vol. 2, at 138. The person with whom Defendant spoke was not the paralegal but an unidentified man, who said that he would have to email Romero to find out whether an appeal had been filed. Apparently, Defendant heard nothing further from Romero's office before Romero's return.

Defendant called the district-court clerk's office in late September 2008 and was told that no notice of appeal had been filed in his case. He contacted some lawyers, but he could not afford to hire one. By November, however, he had consulted an inmate in the prison law library who offered legal assistance. The inmate said that he would need additional documents to determine what Romero had filed. In January 2009 Defendant finally spoke with Romero, who had come back from Cuba, and was told that no notice of appeal had been filed. When Defendant called Romero again in June, Romero said that he would send Defendant's wife a disk containing his whole file and suggested that Defendant look into postconviction relief. Defendant received his file in July or August 2009. The inmate in the prison library eventually prepared a § 2255 motion for Defendant, which Defendant submitted to the district court pro se.

Defendant's § 2255 motion was filed on November 2, 2009. Attached to the motion was a certificate of mailing stating that Defendant had presented it to prison authorities for mailing on October 20. The motion alleged that Romero had provided ineffective assistance of counsel by failing to file a timely appeal from Defendant's sentence. The government did not contest the merits of the ineffective-assistance claim, but argued that the § 2255 motion was untimely.

The district court, adopting the recommendations of the magistrate judge, determined that it was unnecessary to decide whether Defendant was entitled to the benefit of the prison mailbox rule, see Price v. Philpot, 420 F.3d 1158, 1163–64 (10th Cir.2005) (pleading mailed by prisoner is deemed filed in district court when prisoner deposits pleading in prison legal mail), because his motion was not filed within the one-year limitations period set by AEDPA even if deemed filed on October 20, 2009. It also ruled that Defendant was not entitled to equitable tolling and dismissed the § 2255 motion as untimely. Defendant filed a timely notice of appeal, and his brief includes a request for a COA.

II. ISSUES ON APPEAL AND STANDARDS OF REVIEW

Section 2255(f) establishes a one-year limitations period for filing a § 2255 motion. The limitations period commences on the latest of four dates. Defendant relies on only two of them: “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[,]” § 2255(f)(2), and “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence[,]” § 2255(f)(4).

Defendant argues on appeal (1) that the AEDPA limitations period did not begin to run until January 2009, when Romero's failure to file a notice of appeal “could have been discovered through the exercise of due diligence[,]” § 2255(f)(4); (2) that he is actually innocent of his sentence, so any untimeliness of his § 2255 motion should be forgiven; (3) that the limitations period has yet to begin running and his § 2255 motion is timely because Romero's failure to file a notice of appeal constituted an unconstitutional impediment created by the government, see§ 2255(f)(2); and (4) that even if the limitations period began to run in September 2008, when he was informed that no notice of appeal had been filed, the limitations period should be equitably tolled because a fellow inmate exploited his ignorance of the statute of limitations, the prison placed him in administrative segregation for four months without access to his legal resources, and Romero's office inordinately delayed providing documents to him.

We generally review de novo the dismissal of a habeas petition on the ground of untimeliness. See Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir.2007) (denial of an application for relief under 28 U.S.C. § 2254 on the ground of untimeliness under 28 U.S.C. § 2244(d) is generally reviewed de novo). Questions of statutory interpretation are also reviewed de novo. See United States v. Willis, 202 F.3d 1279, 1280 (10th Cir.2000). But we review the district court's fact findings for clear error. See Robinson v. Golder, 443 F.3d 718, 720 (10th Cir.2006). And “[w]e review the district court's decision on equitable tolling for an abuse of discretion.” See United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir.2008).

III. DISCUSSIONA. Discovery that Notice of Appeal Had Not Been Filed

AEDPA provides that a § 2255 motion is timely if it was filed within a year of when “the facts supporting the claim or claims presented [that is, that Romero had failed to file a notice of appeal] could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4). This provision is an example of what are called “discovery rules” for delaying the accrual of a cause of action. Discovery rules are common in statutes of limitations, both federal, see, e.g.,15 U.S.C. § 77m (1994) (“No action shall be maintained ... unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence.”), and state, see, e.g.,Colo.Rev.Stat. § 7–74–107 (1986) (“An action for misappropriation of a trade secret shall be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered.”). And they are often read into statutes of limitations that are not explicit on the point. See Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) (“Federal courts, to be sure, generally apply a discovery accrual rule when a statute is silent on the issue....”).

The AEDPA rule differs from most discovery rules in one respect. The typical provision starts the limitations period either (1) when the plaintiff has actually discovered the pertinent facts or (2) when a person exercising reasonable diligence would have discovered those facts. The AEDPA provision contains only the second test, an objective standard. See Great Rivers Coop. v. Farmland Indus., 120 F.3d 893, 896 (8th Cir.1997) (referring to reasonable-diligence requirement as an “objective standard”); Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 609 (7th Cir.1995) (si...