United States v. Merise
| Decision Date | 21 April 2020 |
| Docket Number | Criminal Action No. 06-42-1 (JDB) |
| Parties | UNITED STATES OF AMERICA v. LESLEY MERISE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Lesley Merise moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, arguing that the Court failed to consider his deportable status at sentencing, that his trial counsel was ineffective, and that his plea was made unknowingly and unintelligently. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Mot. to Vacate") [ECF No. 53] at 13-16.1 For the reasons that follow, Merise's motion will be dismissed as untimely under 28 U.S.C. § 2255(f).
In 2005, Merise and three others kidnapped a nine-year-old American citizen who was living with her family in Port-au-Prince, Haiti. Statement of the Offenses [ECF No. 36-1] at 1. The four hostage-takers, wearing masks and brandishing weapons including a machete and a fake firearm, abducted the girl from her bed after invading the family's home. Id. at 1, 4. They then took the girl to a remote mountain location where she was held for more than a week while the hostage-takers demanded ransom money from her family. Id. at 1-2.
Merise was arrested in Haiti in February 2007. After he waived extradition, he was brought to the United States and arraigned. Minute Entry, April 10, 2007; Bench Warrant Returned Executed [ECF No. 19]. In August 2007, Merise pled guilty to one count of Hostage Taking and Aiding and Abetting and Causing an Act to be Done, in violation of 18 U.S.C. §§ 1203(a) and 2. Plea Agreement [ECF No. 36] at 1; Indict. [ECF No. 1] at 1-2. Merise was sentenced to 238 months' imprisonment, a sentence at the lower end of the advisory guidelines range. Judgment [ECF No. 44] at 1-2; Amended Statement of Reasons [ECF No. 48] at 1-2. Judgment was entered on December 12, 2007. Judgment at 1.
In the eleven and a half years that followed, Merise never appealed his conviction, nor did he ever challenge his sentence under § 2255. Then, on June 10, 2019, Merise filed his first § 2255 motion, which is the motion now before this Court. Mot. to Vacate at 1. The Court ordered the government to respond. Minute Order, Oct. 22, 2019. The government filed a brief in opposition, arguing that Merise's motion is untimely. See United States' Opp'n to Def.'s Pro Se Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Opp'n Br.") [ECF No. 56]. Merise filed a reply. See Def.'s Reply to Gov't's Resp. for a 28 U.S.C. § 2255 Mot. ("Reply Br.") [ECF No. 57]. The motion is now ripe for consideration.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") authorizes federal prisoners to move to vacate, set aside, or correct a sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A prisoner's ability to bring such a motion is subject to a strict one-year time limitation triggered by "the latest of," as relevant here, (1) "the date on which the judgment of conviction becomes final," (2) "the date on which the right asserted was initiallyrecognized 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 (3) "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)(1), (3), (4).2
Merise's § 2255 motion raises four grounds for relief: (1) the court failed to consider his deportable status at sentencing, depriving him of due process; (2) his trial counsel was deficient in failing to consult with him concerning a direct appeal; (3) his trial counsel was deficient in failing to investigate and present mitigating evidence regarding Merise's mental health and family circumstances at sentencing; and (4) he made his plea unknowingly and unintelligently. Mot. to Vacate at 13-16. All of these arguments, however, are barred by the one-year time limitation on the filing of § 2255 motions and therefore must be dismissed as untimely. See 28 U.S.C. § 2255(f).
"In most cases, the operative date from which the limitation period is measured will be the one [in § 2255(f)(1)]: the date on which the judgment of conviction becomes final." Dodd v. United States, 545 U.S. 353, 357 (2005) (internal quotation marks omitted). Merise's § 2255 motion is untimely under § 2255(f)(1) because it was filed more than one year (indeed, more than eleven years) after Merise's conviction became final in December 2007. Merise recognizes that the time for him to file a § 2255 motion technically expired in December 2008. Mot. to Vacate at 18. Merise makes a variety of arguments, however, in an effort to overcome this hurdle. He argues that the statute of limitations should be equitably tolled; that his first ground for relief is timely under § 2255(f)(4); that the actual innocence exception to AEDPA's statute of limitations applies;and that the one-year time limitation is an unconstitutional suspension of the writ of habeas corpus. See Mot. to Vacate at 5, 23. The Court will address each of these arguments in turn.
Merise argues that AEDPA's statute of limitations should be equitably tolled, citing the facts that he is a noncitizen unfamiliar with U.S. law, he has a mental condition that makes him timid and shy, there was no reasoned appellate court opinion, and his attorney advised him that there was nothing else for him to do and that he should not talk with other prisoners or jailhouse lawyers about his case. Mot. to Vacate at 18, 21-23.
AEDPA's statute of limitations can, in appropriate circumstances, be equitably tolled. See Holland v. Florida, 560 U.S. 631, 645 (2010). However, "equitable tolling is appropriate only if a petitioner shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'" Head v. Wilson, 792 F.3d 102, 106 (D.C. Cir. 2015) (quoting United States v. Baxter, 761 F.3d 17, 30-31 (D.C. Cir. 2014)). The delay "cannot be a product of [a petitioner's] own misunderstanding of the law or tactical mistakes in litigation." Menominee Indian Tribe of Wis. v. United States, 764 F.3d 51, 58 (D.C. Cir. 2014). When a deadline is missed as a result of a "garden variety claim of excusable neglect" or a "simple miscalculation," equitable tolling is not warranted. Holland, 560 U.S. at 651 (internal quotation marks omitted).
The circumstances that Merise describes, even collectively, do not justify equitable tolling of the one-year limitation to file a § 2255 motion. Neither Merise's unfamiliarity with U.S. law nor the lack of guidance he received regarding post-conviction relief supports equitable tolling. See United States v. Cicero, 214 F.3d 199, 203 (D.C. Cir. 2000) (). And although equitable tolling may be justified where "an attorney's behavior [is] so outrageous or so incompetent as to render it extraordinary," United States v. Pollard, 416 F.3d 48, 56 (D.C. Cir. 2005) (quotation omitted), the fact, if true, that Merise's attorney advised him "that there was nothing else for him to do, and not to talk to other prisoners about the case," Mot. to Vacate at 22, does not rise to the level of an "extraordinary circumstance." Cf. White v. Patton, 644 Fed. App'x 817, 818 (10th Cir. 2016) (unpublished order) ( that counsel's failure to advise petitioner of his right to file a habeas petition did not justify equitable tolling).
Finally, even if there had been extraordinary circumstances that prevented Merise from timely filing his § 2255 motion, he has not shown that he diligently pursued his rights over the last decade and thus he does not qualify for equitable tolling. See Gordon v. Franklin, 456 F. App'x 739, 742 (10th Cir. 2012) (unpublished order) (); see also Rao v. Baker, 898 F.2d 191, 198 (D.C. Cir. 1990) .
Section 2255(f)(4)
In addition to the equitable tolling defense, Merise contends that his first ground for relief—that "[t]he court failed to consider the consequences of [his] deportable status" in sentencing—is timely under § 2255(f)(4) because "the operative fact, the passage of the First Step Act of 2018, occurred within the last year." Mot. to Vacate at 5, 13. As the Court understands it, Merise's position is that the First Step Act involves a series of criminal justice reforms that areretroactively applicable to most prisoners, but not to prisoners who are, like Merise, deportable, and that the Court's failure to consider this disparity of treatment at sentencing creates a due process and equal protection issue. Id. at 18.
But section 2255(f)(4) states that the statute of limitations shall run from "the date on which the facts supporting the claim or claims presented could have been discovered." 28 U.S.C. § 2255(f)(4) (emphasis added). An intervening change in law does not constitute a new "fact" under § 2255(f)(4). See Whiteside v. United States, 775 F.3d 180, 183 (4th Cir. 2014) (collecting cases); see also United States v. Thompson, No. 16-CR-30038, 2020 WL 1274217, at *3 (C.D. Ill. Mar. 17, 2020) (...
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