United States v. Gould, Civil Action No. 97-3090 (E.D. Pa. 7/29/1997)
| Decision Date | 29 July 1997 |
| Docket Number | Civil Action No. 97-3090.,Criminal Action No. 91-580. |
| Parties | UNITED STATES OF AMERICA v. JAMES L. GOULD. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Defendant has brought this motion pursuant to 28 U.S.C. § 2255 to set aside or vacate his sentence, arguing that his trial counsel was constitutionally ineffective for failing to object to the court's imposition of the statutory maximum sentence. Gould essentially argues that, despite the fact that the statutory maximum sentence was within the defendant's properly calculated guideline range, the court's imposition of that sentence illegally negated the effect of the defendant's two-point reduction for acceptance of responsibility. Finding this argument lacks merit, the court concludes that trial counsel was not ineffective for failing to raise the issue. The court will, therefore, deny the motion.
On November 26, 1991, defendant James L. Gould ("Gould") pled guilty to one count of armed bank robbery. See 18 U.S.C. § 2113 (a), 2113(d). Defendant's guilty plea in the instant action was the result of another in a series of criminal escapades spanning three decades. As a result of Gould's lengthy criminal history, the Presentence Report ("PSR") fixed Gould's total criminal history points at 27. See PSR at ¶ 49. Twenty-seven points was more than adequate to qualify Gould for the maximum criminal history category of VI. See PSR at ¶ 49-50. As two of his prior felonies were crimes of violence, Gould was also classified as a career offender pursuant to U.S.S.G. § 4B1.1, thereby raising the offense level of his crime to 34. See U.S.S.G. § 4B1.1(B); PSR at ¶ 51. Two points were then subtracted from this offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1; U.S.S.G. § 4B1.1, to yield a final offense level of 32 and a Criminal History Category of VI, resulting in a sentencing range of 210 to 262 months imprisonment. See PSR at ¶ 55.
Arguing that the defendant's criminal history category did not adequately reflect the seriousness of the defendant's past criminal conduct, the Government filed a motion pursuant to U.S.S.G. § 4A1.3 seeking an upward departure in the defendant's sentencing range. The court found adequate grounds for an upward departure and granted the government's motion.1
See N.T. Oct. 8, 1992 at 49-51. Because the defendant already had a Criminal History Category of VI, the guidelines instruct the court to adjust the offense level within category VI. See U.S.S.G. § 4A1.3 (). Following these instructions, the court adjusted the defendant's offense level to 34, yielding a guideline range of 262 to 327 months in prison. See N.T. Oct. 8, 1992 at 51.
The statutory maximum sentence for armed bank robbery is 25 years, or 300 months. See 18 U.S.C. § 2113(d). Because the statutory maximum was within the adjusted guideline range, and because the court found no reason to depart downward from the guideline range, the court imposed the statutory maximum sentence of 300 months imprisonment. See N.T. Oct. 8, 1992 at 51-53; U.S.S.G. § 5G1.1(c)(1).
Gould now argues that the court was not authorized to impose the statutory maximum sentence in his case, because to do so eviscerates the benefit of his acceptance of responsibility. Essentially, Gould argues that, because he accepted responsibility and qualifies for a reduction under U.S.S.G. § 3E1.1, the court may not impose the maximum sentence authorized by law, but must rather depart downward from that maximum sentence based on his acceptance of responsibility. To do otherwise, he claims, would violate the language and purpose of the sentencing guideline's acceptance of responsibility provision.
Defendant attempted to raise this issue on direct appeal, but the court of appeals found that the issue had been waived because trial counsel had not raised it at sentencing. Accordingly, Gould now claims that trial counsel was constitutionally ineffective for failing to raise the issue.
Section 105 of the Antiterrorism and Effective Death Penalty Act of 1996 provides, in part, as follows:
A 1-year period of limitations shall apply to a motion under this section [§ 2255]. The limitations 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.
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, § 105, 110 Stat. 1214, 1220 (codified at 28 U.S.C. § 2255).
The statute thus provides a one year limitation period in which claims under § 2255 must be brought. As defendant's conviction became final well before the enactment of AEDPA, at the latest the limitations period began to run in Gould's case on the date the AEDPA became effective, April 23, 1996. See, e.g., Calderon v. United States Dist. Ct., 112 F.3d 386, 389 (9th Cir. 1997) (); Duarte v. Hershberger, 947 F. Supp. 146, 149 (D.N.J. 1996) (). Gould's motion pursuant to § 2255 was filed on April 29, 1997-six days after the limitation period expired.
In a letter to the court, Gould explained that his motion would be filed late because his prison was subject to a "lock down" and he would be unable to complete the motion before the expiration of the limitation period. The government investigated Gould's claim and confirmed that Gould's prison was subject to a lockdown. The government further stated that "[i]n the interest of justice, the government will not pursue any waiver claim it may have in this matter based on the extension requested by the defendant." Gov't's Answer to Def.'s Mot. Under 28 U.S.C. § 2255 at 1 n. 1. It therefore appears to the court that the government has waived the applicability of the limitations period in this case.
Subject matter jurisdiction, however, may not be waived, and such jurisdiction may not be conferred even by the consent of the parties. See Reich v. Local 30, Int'l Brotherhood of Teamsters, 6 F.3d 978, 982 n. 5 (3d Cir. 1993). The federal courts have an independent obligation to satisfy themselves of their subject matter jurisdiction to hear a given dispute. See Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1049 (3d Cir.) (), cert. denied sub nom., Upp v. Mellon Bank, N.A., 510 U.S. 964 (1993). The court must therefore decide whether the limitation period in § 2255 is jurisdictional — if that provision deprives this court of subject matter jurisdiction, the government may not waive the defendant's failure to comply with the provision.
As of this writing, only one court has squarely addressed the question of whether the limitation provision in § 2255 is a statute of limitation subject to tolling and waiver or a limitation on the court's subject matter jurisdiction. In Calderon v. United States Dist. Ct., 112 F.3d 386 (9th Cir. 1997), the Court of Appeals for the Ninth Circuit concluded that the limitation period in AEDPA with respect to § 2254 petitions is non-jurisdictional:
Unlike other parts of AEDPA, [the limitation provision] is remarkably lucid. It is phrased only as a "period of limitation," and "does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 . . . (1982). Nor does the jurisdictional provision of the habeas statute, 28 U.S.C. § 2241, "limit jurisdiction to those cases in which there has been a timely filing" in the district court. Zipes, 455 U.S. at 393. . . . Indeed, both the Supreme Court and this court have repeatedly held that timing provisions even more unyieldingly phrased than AEDPA's are statutes of limitation . . . .
Calderon's reasoning is persuasive. Nothing in the language of the statute suggests that the limitation period in § 2255 is jurisdictional rather than a statute of limitation. Indeed, the fact that the statute contains its own version of a "discovery rule" in paragraph 4, and a provision similar to the common law rule of fraudulent concealment in paragraph 2, suggests that the drafters envisioned the provision to function as a typical statute of limitations, rather than a jurisdictional limitation. Further, because the limitations periods operates to remove judicial review of constitutional claims, the court will construe the statute in favor of judicial review if possible. See Webster v. Doe, 486 U.S. 592, 603 (1988); see Stehney v. Perry, 101 F.3d 925, 934 (3d Cir. 1996).
Absent contrary authority from our ...
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