USA. v. Cicero

• Decision Date: 16 June 2000
• Docket Number: No. 99-3041,N,99-3041
• Citation: 214 F.3d 199,341 U.S.App. D.C. 439
• Parties: (D.C. Cir. 2000) United States of America, Appellee v. Kendrick Albert Cicero, a/k/a Kenny, a/k/a Albert Kenrich Cicero,a/k/a Paul Haynes,a/k/a Diamond, Appellant United States of America, Appellee v. Ian A. Thorne, Appellant o. 99-3029
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 199

214 F.3d 199 (D.C. Cir. 2000)

United States of America, Appellee v. Kendrick Albert Cicero, a/k/a Kenny, a/k/a Albert Kenrich Cicero,a/k/a Paul Haynes,a/k/a Diamond, Appellant United States of America, Appellee v. Ian A. Thorne, Appellant

No. 99-3041, No. 99-3029

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 2, 2000

Decided June 16, 2000

Appeal from the United States District Court for the District of Columbia(No. 91cr00633-01)

Appeal from the United States District Court for the District of Columbia(No. 90cr00422-02)(No. 91cr00633-01)

A. J. Kramer, Federal Public Defender, argued the cause for appellants. With him on the briefs was Evelina J. Norwinski, Assistant Federal Public Defender.

John R. Fisher, Assistant U.S. Attorney, argued the cause for appellee. With him on the briefs was Wilma A. Lewis, U.S. Attorney. Mary-Patrice Brown, Assistant U.S. Attorney, entered an appearance.

Before: Edwards, Chief Judge, Ginsburg and Sentelle, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge:

Kendrick Cicero and Ian Thorne filed separate appeals presenting the same questions: Must a prisoner whose conviction became final before April 24, 1996--the effective date of the Antiterrorism and Effective Death Penalty Act of 1996--raise any challenge to his conviction or to his sentence, pursuant to 28 U.S.C. 2255, within one year of the effective date of the Act? If so, is that time limitation subject to equitable tolling? And if it is, then is either appellant entitled to such tolling based upon the equity of his case?

We hold first that a prisoner whose conviction became final prior to April 24, 1996 must have filed his 2255 motion within one year of that date. Further, we hold that regardless whether this limitation is subject to equitable tolling--a question we need not decide today--the cases before us do not warrant such relief.

I. Background

Prior to the effective date of the AEDPA a prisoner could challenge his conviction or sentence as a violation of the Constitution of the United States by filing a motion under 28 U.S.C. 2255 at almost any time. See Mickens v. United States, 148 F.3d 145, 146 (2d Cir. 1998). As amended by that Act, paragraph six of 2255 now limits the time in which a prisoner may bring such a motion as follows:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of

1) the date on which the judgment of conviction be-comes 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.

Messrs. Cicero and Thorne ask us to excuse the tardiness of their motions on the ground that they were impeded from timely filing their 2255 motions by government actions beyond their control. They do not, however, claim that the Government acted unlawfully.

A. Cicero's Case

Mr. Cicero was convicted in 1992 of possession with intent to distribute and of conspiracy to distribute cocaine base, in violation of 21 U.S.C. 841 and 846. He received concurrent sentences of 240 months of incarceration and five years of supervised release, as well as a fine and a special assessment. Mr. Cicero appealed and this court affirmed his convictions. See United States v. Cicero, 22 F.3d 1156 (D.C. Cir.), cert. denied, 513 U.S. 905 (1994).

Mr. Cicero states that he began working on a motion challenging his conviction and sentence in 1996. His work was interrupted several times that year, however. In October 1996, Mr. Cicero was stabbed by another inmate; he spent five days in the hospital and was then placed in protective segregation for an unspecified period. During this time, Mr. Cicero had access to the prison library for only one hour approximately every three weeks. On April 14, 1997, prison officials packed Mr. Cicero's possessions, including his legal papers, in anticipation of his transfer to a different facility. He did not arrive there and regain his possessions until June 20.

Mr. Cicero signed and mailed his 2255 motion on July 24, 1997. The district court clerk's office received it on July 28.The district court dismissed Mr. Cicero's motion as untimely because he had failed to file it before expiration of the one year grace period running from the effective date of the AEDPA. Mr. Cicero appeals, claiming he was prevented from timely filing by acts of the Government, that is, of prison officials, beyond his control.

B.Thorne's Case

Mr. Thorne was convicted in 1991 of possession with intent to distribute and of conspiracy to distribute and to possess with intent to distribute cocaine base, in violation of 21 U.S.C. 841 and 846. He was sentenced to 151 months of incarceration and five years of supervised release, and on appeal we affirmed his conviction. See United States v. Thorne, 997 F.2d 1504 (D.C. Cir. 1993).

Mr. Thorne states that in November 1995, after several unsuccessful attempts to obtain from his attorney discovery materials and other documents related to his case, he petitioned the district court to compel their release. In March 1996 the district court ordered Mr. Thorne's attorney to provide him with a copy of his case file, and Mr. Thorne submitted a motion seeking the transcript of argument in the appeal of his codefendant. In December 1996 the court denied Mr. Thorne's request for the transcript, reasoning that the appeal was a matter of public record and Mr. Thorne had not demonstrated that he could not otherwise obtain a copy of the transcript.

Mr. Thorne further states that he had been working on his 2255 motion with a "jailhouse lawyer" named Muhammad Al'Askari, and that their progress was halted when Mr. Al'Askari was placed in segregation some time prior to April 24, 1997. Mr. Thorne's legal papers were packed and stored with Mr. Al'Askari's possessions during the period of his segregation, which ended early in June. Mr. Thorne gave his 2255 motion to prison officials for mailing on June 11 and the motion was filed in the district court on June 24. The district court dismissed Mr. Thorne's motion as untimely because it was submitted more than one year after the effective date of the AEDPA. Mr. Thorne requested reconsideration and asked the court equitably to toll the time limitation. The court declined, stating that although the time limitation in 2255 is subject to equitable tolling, Mr. Thorne had not alleged facts that would warrant tolling in his case.On appeal Mr. Thorne argues that the time limitation in 2255 is subject to equitable tolling and that tolling is warranted in his case.

II. Analysis

We consider first application of the time limitation in 2255 to a prisoner whose conviction became final before the effective date of the AEDPA. We address this issue de novo. See Moore v. United States, 173 F.3d 1131, 1133 (8th Cir. 1999). Second, we consider whether, assuming the time limit in 2255 is subject to equitable tolling, it should be tolled in the cases before us.

A. One Year Grace Period

We need not linger long over the first issue. The parties agree, as do our sister Circuits, that a prisoner whose conviction became final before the AEDPA was enacted has a one year grace period from the date of enactment in which to file a motion under 2255. See Rogers v. United States, 180 F.3d 349, 354 (1st Cir. 1999); Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998); Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998); Brown v. Angelone, 150 F.3d 370, 374-75 (4th Cir. 1998); United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998); Brown v. O'Dea, 187 F.3d 572, 576-77 (6th Cir. 1999); O'Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998); Moore v. United States, 173 F.3d 1131, 1135 (8th Cir. 1999); United States v. Valdez, 195 F.3d 544, 546 (9th Cir. 1999); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997); Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998). This unanimity of view reflects, no doubt, that without such a grace period a prisoner convicted before the effective date of the AEDPA, when there was no time limitation for filing a 2255 motion, would be denied a reasonable time within which to bring a claim before losing the right to do so. See Flores, 135 F.3d at 1003-06. In any event, the grace period expired on April 24, 1997. See Rogers, 180 F.3d at 355; Mickens, 148 F.3d at 148; Villegas v. Johnson, 184 F.3d 467, 469 & n.1 (5th Cir. 1999); Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999); Moore, 173 F.3d at 1135; Simmonds, 111 F.3d at 746; but cf. Morton, 134 F.3d at 112 (grace period expires April 23, 1997); Angelone, 150 F.3d at 375-76 (same); O'Connor, 133 F.3d at 550 (same); Valdez, 195 F.3d at 546 (same); Goodman, 151 F.3d at 1337 (same); United States v. Jones, 963 F. Supp. 32, 3435 (D.D.C. 1997) (same).

Although Messrs. Cicero and Thorne were entitled to the benefit of the grace period, neither appellant filed his 2255 motion within the period allowed. Their motions will be deemed timely, therefore, only if that time limitation may be equitably tolled in their cases.

B. Equitable Tolling

Unless the Congress has provided otherwise, courts generally apply a rebuttable presumption that a statute of limitation is subject to equitable tolling. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990). Although most of the circuits that have considered the questions have concluded that 2255 is a statute o...