United States v. Jackson
| Decision Date | 01 May 2012 |
| Docket Number | No. 10-10401,10-10401 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee v. RICHARD LEON JACKSON, Defendant-Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court
for the Northern District of Texas
Before KING, BARKSDALE, and PRADO, Circuit Judges.
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Defendant—Appellant Richard Leon Jackson appeals the district court's dismissal of his motion for post-conviction relief, contending that his motion is timely under 28 U.S.C. § 2255(f)(4), or, alternatively, that he is entitled to equitable tolling. Because we conclude that the facts underlying Jackson's claim could have been discovered through the exercise of due diligence in 1993, andthat Jackson failed to exercise such diligence, we find that Jackson's motion is untimely and affirm.
In 1992, Defendant—Appellant Richard Leon Jackson ("Jackson") committed a series of armed robberies in Fort Worth, Texas, and was eventually charged with both state and federal offenses. After consulting with his attorney, Jackson pleaded guilty in federal court to two counts of conspiracy to obstruct commerce by robbery (Counts 2 and 10) and one count of using a firearm during a crime of violence (Count 5), in violation of 18 U.S.C. §§ 2, 924(c), and 1951. The district court sentenced Jackson to concurrent 63 month sentences for Counts 2 and 10, and a consecutive 60 month sentence for Count 5, for a total of 123 months. Jackson was also ordered to serve three years of supervised release. The district court did not state at sentencing or in its judgment that Jackson's federal sentence would run concurrently with any state sentence.
Shortly thereafter, Jackson pleaded guilty to seven counts of aggravated robbery in state court and received a 20-year prison term, which the state court ordered to be served concurrently with his federal sentence. Jackson was placed in state custody, where he remained until he was released on parole in December 2008. Jackson was then immediately taken into federal custody to begin service of his federal sentence.
Soon after he began his federal sentence, Jackson retained counsel and requested credit for the time he served in state custody. The Designation and Sentence Computation Center at the Bureau of Prisons ("BOP") responded to Jackson's request on April 10, 2009, but explained that it had "not received a request from the U.S. Marshals for designation pertaining to Mr. Jackson." It advised that after a designation request was made and it received sentencing materials from the district court, it would be able to "calculate [Jackson's] release date." At Jackson's request, the U.S. Marshals Service submitted arequest for designation, and on May 6, 2009, the BOP computed Jackson's release date as December 9, 2017.
On November 30, 2009, Jackson, through counsel, filed a motion for post-conviction relief under 28 U.S.C. § 2255. He claimed that his 1993 guilty plea in federal court was not knowing and voluntary because his federal public defender, Larry Brown ("Brown") (now deceased), advised him to plead guilty in federal court because the State was "probably 'done'" with him and would not prosecute since the federal government had "'picked up the charges.'" Brown further allegedly advised Jackson that the "worst thing that would happen" was that the state and federal sentences would be concurrent. Jackson contends that he relied upon this alleged advice when he decided to plead guilty in federal court. Jackson also claims that he was denied effective assistance of counsel, in light of Brown's alleged advice and Brown's failure to request that the federal court order Jackson's federal sentence to run concurrently with his state sentence.
The government moved to dismiss Jackson's § 2255 motion as untimely. In response, Jackson claimed that he did not learn the facts underlying his claim—that his federal sentence was to run consecutively to his state sentence— until December 2008, when he was released from state custody and taken into federal custody. Jackson asserted that his motion was timely because he filed it within one year of December 2008. Alternatively, he argued that he was entitled to equitable tolling because he was misled by his attorney. The district court dismissed the motion, finding it untimely under 28 U.S.C. § 2255(f)(1) and not subject to equitable tolling. Jackson filed a notice of appeal.
This court granted a certificate of appealability on two issues: (1) whether Jackson filed his motion within one year of "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence," thus rendering the motion timely under 28 U.S.C. § 2254(f)(4), and (2) whether Jackson is entitled to equitable tolling.
We review de novo the district court's conclusion that Jackson's motion is untimely. See United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008) (); see also United States v. Franks, 397 F. App'x 95, 97 (5th Cir. 2010).
A § 2255 movant has one year to seek postconviction relief. 28 U.S.C. § 2255(f). This one-year period runs from the latest of four possible dates, the last of which being "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f)(4). For this provision to apply, "a petitioner's diligence must merely be 'due' or 'reasonable' under the circumstances." Starns v. Andrews, 524 F.3d 612, 619 (5th Cir. 2008) (analyzing 28 U.S.C. § 2244(d)(1)(D)). As the Supreme Court has explained, "diligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize" that he should act. Johnson v. United States, 544 U.S. 295, 308 (2005). In applying § 2255(f)(4), "[t]he important thing is to identify a particular time when . . . diligence is in order." Id.
We conclude that Jackson's motion is untimely under § 2255(f)(4). The "facts supporting the claim . . . presented," specifically that Jackson's attorney allegedly incorrectly advised him that his federal sentence would run concurrently with his state sentence, could have been discovered immediately after Jackson's sentencing in federal court.1 At his sentencing, the district judgeinformed Jackson that his sentence on Count 5 of the indictment, use of a firearm during the commission of a robbery, "carries a mandatory five-year consecutive sentence pursuant to 18 U.S.C. § 924(c)," and that "[t]he sentence on Count 5 is to run consecutive to the sentence imposed on Counts 2 and 10 as required by law." This statement is reiterated in the plea agreement's factual resume, which explicitly stated that Jackson's sentence for Count 5 "must be consecutive to any other sentence imposed." Similar statements were repeated in the Presentence Investigation Report and in the district court's judgment. These statements are consistent with 18 U.S.C. § 924(c)(1)(D)(ii), which provides, "[n]otwithstanding any other provision of law . . . no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person . . . ." 18 U.S.C. § 924(c)(1)(D)(ii) (emphasis added). This provision includes state sentences. See United States v. Gonzales, 520 U.S. 1, 11 (1997) (); see also United States v. Watford, 468 F.3d 891, 900 n.3 (6th Cir. 2006) (). At the very least, therefore, Jackson could have easily discovered in 1993 that his sixty month sentence on Count 5 would run consecutively to his state sentence by virtue of 18 U.S.C. § 924(c)(1)(D)(ii). Moreover, it is well established that "[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." 18 U.S.C. § 3584(a). As the federal judgment here is silent on this issue, it imposes a consecutive rather than concurrent sentence.
In light of the requirements of § 924(c), as well as the presumption of § 3584(a), the fact that Jackson's federal sentence would run consecutively to his state sentence could have been discovered through the exercise of due diligence after his sentencing in federal court in 1993, well before Jackson began serving his federal sentence in December 2008. Jackson could have discovered these facts through his own reasonable inquiry, or with the assistance of counsel.
The record demonstrates that Jackson failed to exercise due diligence in discovering the facts underlying his claim. Jackson attempts to justify his lack of diligence by stating that he had no reason to question Brown's alleged advice before December 2008. Jackson argues that he assumed that his sentences would run concurrently based on his attorney's alleged advice and his state court judgments, which ordered his state sentence to run concurrently with his federal sentence. Jackson maintains that, had he been informed earlier that he would not receive credit against his federal sentence, he would have insisted that Brown return to federal court to address the issue or he would have filed an appropriate motion.
Certain aspects of this case, however, undermine Jackson's argument. In an affidavit attached to his § 2255 motion, Jackson admits that he had nagging concerns throughout his time in state prison that his federal sentence would not in fact...
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