United States v. Latin

• Decision Date: 07 March 2022
• Docket Number: Civ. 21-00453 JMS-RT,Cr. 17-00514 JMS (03)
• Parties: UNITED STATES OF AMERICA, Plaintiff-Respondent, v. SHEREASE ANTOINETTE LATIN, Defendant-Petitioner.
• Court: U.S. District Court — District of Hawaii

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
SHEREASE ANTOINETTE LATIN, Defendant-Petitioner.

Cr. No. 17-00514 JMS (03)

Civ. No. 21-00453 JMS-RT

United States District Court, D. Hawaii

March 7, 2022

ORDER (1) DISMISSING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY, ECF NO. 204; AND (2) DENYING A CERTIFICATE OF APPEALABILITY

I. INTRODUCTION

Currently before the court is Defendant-Petitioner Sherease Antionette Latin's (“Latin”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “Petition”). ECF No. 204. For the reasons discussed below, the Petition is DISMISSED and a Certificate of Appealability is DENIED.

II. BACKGROUND

On July 17, 2018, Latin pled guilty with a plea agreement to Count 1 of an Indictment charging her with conspiracy to distribute and possess with intent

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to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. See ECF No. 38; ECF No. 39 at PageID # 85; ECF No. 144 at PageID # 663.^[1]On January 23, 2020, the court sentenced Latin to a term of 120 months imprisonment to be followed by five years of supervised release. See ECF No. 144. Latin filed a notice of appeal on January 25, 2020. ECF No. 146. She later moved for voluntary dismissal of that appeal, which the Ninth Circuit granted on June 9, 2020. ECF No. 172.

On June 9, 2021, Latin^[2] filed a motion through which she sought an extension of time to file a future 28 U.S.C. § 2255 habeas petition, apparently recognizing that any filing of such a petition after June 9, 2021 would be untimely. ECF No. 201 at PageID # 1149; see also ECF No. 201-1 at PageID # 1154.^[3] The court denied the motion as procedurally improper on June 15, 2021. See ECF No. 202 at PageID # 1157 (“Until Defendant files a habeas petition, this court lacks

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jurisdiction or authority to consider the timeliness of that petition and whether she is entitled, for example, to equitable tolling of the statutory filing date.” (footnote omitted)).^[4] Latin did not appeal that determination.

Latin now submits the present Petition. ECF No. 204; see also ECF No. 206 (“Supporting Documentation”). Liberally construed, Latin filed the Petition on November 9, 2021.^[5]

After determining that the Petition did not appear timely on its face, the court ordered briefing from both parties limited to the issue of timeliness. ECF

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No. 205 at PageID # 1298 (stating that the briefing should address the timeliness issue, whether under § 2255(f)(1)-(4) or under the doctrine of equitable tolling). The United States filed its Response on December 13, 2021. ECF No. 208. After extending the due date, ECF Nos. 209 & 210, Latin filed a Reply to the Government's Response on February 14, 2022, ECF No. 211.

For the reasons set forth below, the court determines that the Petition is time-barred.

III. ANALYSIS

Latin alleges ineffective assistance of counsel, arguing that certain failures of two prior counsel prejudiced her and resulted in a higher sentence than she would have otherwise received. More specifically, she argues that her counsel failed to provide effective assistance on several related grounds, including: (1) failure to investigate various discovery documents, the criminal conduct charges listed in her presentence investigation report (“PSR”), the dates of conspiracy stated in her PSR, and the admissibility of a post-arrest statement allegedly made in violation of Latin's Fifth Amendment Rights; and (2) failure to object to the PSR given its “errors and inconsistencies, ” a statement by the court regarding Latin's “significant role” in the criminal conduct, and the amount of substantial assistance credit she received. See ECF No. 204 at PageID ## 1164-69; see also ECF No. 204-1 at PageID ## 1177-91. Latin also bases her Petition on

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“the lack of application of the ‘safety valve' pursuant to the First Step Act of 2018.” ECF No. 204-1 at PageID # 1176. As set forth below, Latin's claims are time-barred and equitable tolling does not apply.

A. Latin's Claims Are Time-Barred Under § 2255(f)(1)-(4)

A one-year statute of limitations applies to § 2255 petitions, which runs 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.

28 U.S.C. § 2255(f).

The finality date of a criminal judgment-that is, the date the one-year limitations period begins to run for purposes of a § 2255 petition-depends upon a defendant's post-conviction appellate activity. If a defendant “does not pursue a

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direct appeal to the Court of Appeals, the conviction becomes final when the time for filing a direct appeal expires.” United States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015) (citing United States v. Schwartz, 274 F.3d 1220, 1223 & n1 (9th Cir. 2001)).

But Latin filed a direct appeal on January 25, 2020, see ECF No. 146, and later voluntarily dismissed that appeal, see ECF No. 172 (Ninth Circuit mandate entered June 9, 2020). When an appeal is voluntarily dismissed, the conviction becomes final on the date the appellate court dismisses the appeal. See United States v. Laughing, 2017 WL 8941235, at *2 (D. Ariz. Feb. 22, 2017) (citing United States v. Arevalo, 408 F.3d 1233, 1236 (9th Cir. 2005) (“[O]nce an appeal is voluntarily dismissed, appellate courts no longer have jurisdiction over the merits of the appeal.”)); see also United States v. Solis-Sanchez, 2017 WL 1166153, at *2 (E.D. Ca. Mar. 29, 2017); United States v. Garibay-Mares, 2008 WL 4630343, at *5 (CD. Ariz. Oct. 20, 2008). Here, the judgment became final on June 9, 2020, the date on which the Ninth Circuit mandate entered.^[6] Latin filed

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her Petition on November 9, 2021-five months past the one-year deadline outlined in § 2255(f)(1). Thus, in order to proceed, Latin's claims must fall under § 2255(f)(2), (f)(3), or (f)(4).

First, § 2255(f)(3) does not apply here. Latin has not asserted a right newly recognized by the Supreme Court and made retroactively applicable on collateral review.

Next, § 2255(f)(2) does not provide Latin any relief from the conclusion that her Petition is untimely. Liberally construing her Reply, Latin appears to argue that the closure of the prison law library during the COVID-19 pandemic and other responsive restrictions constitute government-induced impediments. To be sure, courts have held that lack of access to certain legal resources, including a law library, may constitute, in some circumstances, a government-induced impediment under § 2255(f)(2) (or under 28 U.S.C. § 2244(d)(1)(B), the § 2244 counterpart to § 2255(f)(2)).^[7] See, e.g., Simmons v. United States, 974 F.3d 791, 795-96 (6th Cir. 2020); see also Estremera v. United States, 724 F.3d 773, 777 (7th Cir. 2013); Egerton v. Cockrell, 334 F.3d 433, 438-39 (5th Cir. 2003) (finding that “[t]he absence of all federal materials from a prison

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library, ” including a copy of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “without making some alternative arrangements to apprise prisoners of their rights, ” constitutes a government-induced impediment under 28 U.S.C. § 2244(d)(1)(B)); Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (holding that absence of legal materials describing AEDPA may be sufficient to constitute an “impediment” under 28 U.S.C. § 2244(d)(1)(B)).

But “to invoke Section 2255(f)(2), it is the prisoner's responsibility to allege (1) the existence of an impediment to his making a motion, (2) governmental action in violation of the Constitution or laws of the United States that created the impediment, and (3) that the impediment prevented the prisoner from filing his motion.” Simmons, 974 F.3d at 796-97'. Stated differently, Latin must show a causal connection between the unlawful impediment asserted and her failure to...