MARK W. BENNETT, District Judge.
On August 27, 2014, petitioner Michael Ingram filed his pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (§ 2255 Motion) (Civ. docket no. 1). Ingram seeks relief, on various grounds, from his May 12, 2009, sentence to 240 months of imprisonment on a conviction for conspiring to distribute and to possess with intent to distribute crack cocaine after a prior felony drug conviction in violation of 21 U.S.C. §§ 846 and 851. This case is now before me on the respondent's December 31, 2014, Motion To Dismiss (Civ. docket no. 3), in which the respondent argues that Ingram's § 2255 Motion is untimely. In response, Ingram asserts equitable tolling of the statute of limitations and the timeliness of certain claims, based on "new facts," pursuant to 28 U.S.C. § 2255(f)(4).
On March 5, 2008, a jury found Ingram guilty of conspiracy to distribute and to possess with intent to distribute 50 grams or more of crack cocaine. See Verdict Form (Crim. docket no. 131). On June 5, 2008, I denied Ingram's Motion For Judgment Of Acquittal Or In The Alternative Motion For New Trial. See Memorandum Opinion And Order (Crim. docket no. 149). On February 4, 2008, prior to trial, the prosecution had filed a Notice Of Intent To Seek Enhanced Penalties Pursuant To 21 U.S.C. § 851 (Crim. docket no. 86). Ingram did not indicate an intent to object to the requested enhancement until he filed his Response To 21 U.S.C. § 851 Filing (Crim. docket no. 156) on June 13, 2008, the last business day before his sentencing hearing on June 16, 2008. At Ingram's first sentencing hearing, I ruled that the prosecution had failed to prove a prior conviction under § 851 and sustained Ingram's objection to a § 851 enhancement. Sentencing Hearing Minutes (Crim. docket no. 160). The prosecution requested, and I granted, leave to file an interlocutory appeal, and I deferred sentencing until such an appeal was decided. See id.
In a per curiam decision, handed down February 2, 2009, the Eighth Circuit Court of Appeals reversed and remanded with directions to afford the prosecution another opportunity to attempt to prove that the Illinois code section cited in pertinent court records as the statute under which Ingram had been previously been convicted defined a felony drug conviction. See Opinion (Crim. docket no. 187); Amended Opinion (Crim. docket no. 190). Consequently, I held the second part of Ingram's sentencing hearing on March 24, 2009. See Sentencing Hearing Minutes (Crim. docket no. 199). I continued that sentencing hearing, however, to allow the parties to brief certain remaining issues. See id.
I ultimately concluded Ingram's sentencing hearing on May 8, 2009. See Sentencing Hearing Minutes (Crim. docket no. 206). In a Memorandum Opinion (Crim. docket no. 207), filed May 11, 2009, I registered my disagreement with the appellate court's decision to grant the prosecution a "second bite at the apple" to prove Ingram's prior felony conviction, but concluded, nevertheless, that the prosecution had done so on that "second bite." See United States v. Ingram, 613 F.Supp.2d 1069 (N.D. Iowa 2009). Therefore, I sentenced Ingram to a "doubled" mandatory minimum sentence of 240 months pursuant to 21 U.S.C. §§ 841(b)(1)(A), 846, and 851, and Judgment entered on May 12, 2009. Judgment (Crim. docket no. 208).
Ingram filed a Notice Of Appeal (Crim. docket no. 209) on May 13, 2009. In an Opinion (Crim. docket no. 229), filed in our court on February 11, 2010, the Eighth Circuit Court of Appeals affirmed Ingram's conviction and sentence. On June 15, 2010, the same counsel who had represented Ingram in the trial court and on appeal (criminal counsel) filed a Petition For Writ Of Certiorari (Crim. docket no. 234) on Ingram's behalf. On October 8, 2010, the United States Supreme Court denied Ingram's Petition For Writ Of Certiorari. See Crim. docket no. 235. Subsequent proceedings in Ingram's criminal case in this court do not appear to be relevant to the disposition of the Motion To Dismiss now before me.
As noted, above, on August 27, 2014, Ingram filed his pro se § 2255 Motion. Ingram asserts the following grounds for § 2255 relief: (1) ineffective assistance of appellate counsel in failing to follow through and use reasonable diligence to inform Ingram of the denial of his Petition For Writ Of Certiorari and ignoring Ingram's requests for information about the status of that Petition; (2) violation of Ingram's Eighth Amendment rights as the result of the § 851 enhancement of his sentence; (3) violation of "the original meaning of the Constitution" by removal of the determination of Ingram's prior conviction from the province of the jury; and (4) violation of equal protection and due process rights as a result of the § 851 enhancement of Ingram's sentence. Ingram attached to his § 2255 Motion a pro se brief, which he identified as stating the facts supporting each of his grounds for relief, as well as an affidavit of one Fredetta Gibson, concerning her inquiries, on Ingram's behalf, to Ingram's criminal counsel concerning the status of his Petition For Writ Of Certiorari. In an Initial Review Order (Civ. docket no. 2), filed October 27, 2014, I directed the Clerk of Court to appoint counsel (habeas counsel) to represent Ingram in these proceedings and directed the respondent to move or plead in response to Ingram's § 2255 Motion on or before December 29, 2014.
On December 31, 2014, the respondent filed the Motion To Dismiss (Civ. docket no. 3) now before me, asserting that Ingram's § 2255 Motion is untimely and that the one-year statute of limitations has not been equitably tolled. Ingram filed a Response (Civ. docket no. 5), with the assistance of habeas counsel, on January 30, 2015, to which he attached an affidavit from habeas counsel and an affidavit of his own. The respondent filed a Reply (Civ. docket no. 6) on February 5, 2015.
There, unfortunately, this matter languished for more than a year, owing to the press of other business and clerical oversight by chambers staff.
Section 2255 proceedings are civil in nature and, therefore, governed by the Federal Rules of Civil Procedure. See, e.g., Mandacina v. United States, 328 F.3d 995, 1000 & n.3 (8th Cir.), cert. denied, 540 U.S. 1018 (2003). Those rules include Rule 12(b), which provides for a pre-answer motion to dismiss on various grounds. In Moore v. United States, 173 F.3d 1131 (8th Cir. 1999), the Eighth Circuit Court of Appeals held that the references to a one-year "period of limitation" or "limitation period" in 28 U.S.C. § 2255(f) "does not purport to limit the jurisdiction of the courts," and, as such, the "limitation period" is subject to "equitable tolling." 173 F.3d at 1134. More importantly, here, because the "statute of limitations" in § 2255(f) is not "jurisdictional," a motion to dismiss based on untimeliness is pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for "failure to state a claim upon which relief can be granted," rather than pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction. Cf. Wong v. Wells Fargo Bank, N.A., 789 F.3d 889, 897 (8th Cir. 2015) ("A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) as barred by a statute of limitations if the complaint itself shows that the claim is time-barred.").
Although factual "plausibility" is ordinarily the central focus of Rule 12(b)(6) motions to dismiss under the Twom-bal standard,
On the respondent's Motion To Dismiss pursuant to Rule 12(b)(6), I may consider the docket and documents filed in the underlying criminal case, from which Ingram seeks § 2255 relief, and the documents filed on Ingram's direct appeal, because they are "`incorporated by reference or integral to [his] claim,'" Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012) (quoting 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2004)), and because they are "`necessarily embraced by the pleadings.'" Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003)).
As the Eighth Circuit Court of Appeals has explained, "[T]he Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] imposed, among other things, a one-year statute of limitations on motions by prisoners under section 2255 seeking to modify, vacate, or correct their federal sentences." Muhammad v. United States, 735 F.3d 812, 815 (8th Cir. 2013) (citing Johnson v. United States, 544 U.S. 295, 299 (2005)). More specifically, as amended by the AEDPA, 28 U.S.C. § 2255(f) provides four different "triggers" for the running of the one-year statute of limitations, as follows:
28 U.S.C. § 2255(f).
Because the one-year statute of limitations in § 2255(f) is not "jurisdictional," it may be "equitably tolled." See Muhammad, 735 F.3d at 815. The Eighth Circuit Court of Appeals summarized the requirements for "equitable tolling," as follows:
Muhammad, 735 F.3d at 815. The appellate court reviews the disposition of an equitable tolling claim de novo. Id.
The respondent contends, and Ingram does not dispute, that Ingram's August 27, 2014, § 2255 Motion was filed more than one year—indeed, nearly four years—after denial of his Petition For Writ Of Certiorari on October 8, 2010, assuming that the applicable "trigger" for the running of the statute of limitations is § 2255(f)(1). Thus, the first question is whether Ingram's assertion of equitable tolling, in his Response to the respondent's Motion To Dismiss, precludes dismissal.
The respondent contends, in its Motion To Dismiss, that Ingram's § 2255 Motion is not only untimely, but that no "extraordinary circumstances" warrant equitable tolling of his deadline to file his § 2255 Motion. In response, Ingram contends that his criminal counsel's utter failure to inform him of the status of his Petition For Writ Of Certiorari and refusal to respond to his various inquiries about that Petition establish the required "extraordinary circumstances" for equitable tolling. He argues that he was ignorant of the fact that the United States Supreme Court had denied his Petition until May of 2014, when Fredatta Gibson, acting as his "liaison," learned from his criminal counsel that the Petition had, in fact, been denied years earlier. Ingram points out that his criminal counsel's file, which was provided to his habeas counsel, contains no communication records of any kind, even though habeas counsel had requested the "entire file." Ingram contends that communication with a defendant is an essential function of defense counsel and that criminal counsel's utter failure to communicate, here, amounted to "abandonment," which constitutes "extraordinary circumstances" for purposes of equitable tolling, pursuant to Maples v. Thomas, ___ U.S. ___, 132 S.Ct. 912 (2012).
In reply, the respondent argues that Ingram has failed to substantiate his claim that his criminal counsel failed to communicate with him, because Ingram has submitted no copies of letters in which he attempted to contact his counsel. More importantly, the respondent argues, Ingram has completely overlooked the "diligence" prong of equitable tolling. On that prong, the respondent points out that Ingram does not explain why, in the four years that passed between the denial of his Petition For Writ Of Certiorari and the filing of his § 2255 Motion, he or his "liaison" did not request new counsel, did not contact the clerk of the district court regarding his case, and did not file any request for a status update, all of which were within his ability.
I will assume, without deciding, that Ingram's criminal counsel's failure to communicate with him constituted "extraordinary circumstances" that might warrant equitable tolling. See Muhammad, 735 F.3d at 815 (explaining that equitable tolling requires, inter alia, that some extraordinary circumstance stood in the petitioner's way and prevented timely filing of his § 2255 motion). Suffice it to say that I certainly do not condone criminal counsel's failure to communicate with Ingram, either at the time that Ingram's Petition For Writ Of Certiorari was denied or in response to Ingram's various inquiries. Nevertheless, I find that the dispositive prong of Ingram's equitable tolling argument is "diligence." See id.
The Eighth Circuit Court of Appeals has explained, "The diligence required for equitable tolling purposes is `reasonable diligence' not `maximum feasible diligence.'" Id. at 816 (quoting Holland, 560 U.S. at 653, with internal citations and quotation marks omitted). I have previously held that a prisoner does not necessarily have to act "immediately" to file a § 2255 Motion, after becoming aware that his counsel had not taken appropriate action or that the § 2255(f) deadline was imminent or had passed. See Koons v. United States, 995 F.Supp.2d 905, 915 (N.D. 2014). Even so, "reasonable diligence" requires a prisoner to do something more than watch the statute of limitations run out, where the record would show to a duly diligent person that the statute of limitations was running. Cf. Anjulo-Lopez v. United States, 541 F.3d 814, 818-19 (8th Cir. 2008) (finding that the prisoner had not acted diligently, where he waited an entire year before he even tried to contact his attorney about his appeal, and the lack of any notice of appeal was a matter of public record, which a duly diligent person in the prisoner's position could have discovered). Furthermore, an evidentiary hearing is not necessary on the question of equitable tolling, if it is "apparent that a duly diligent person in [the prisoner's] circumstances would have discovered" the status of the prisoner's criminal case "well . . . before he filed his [§ 2255] motion." Id. at 818.
It is apparent, here, that a duly diligent person in Ingram's circumstances would have discovered that the United States Supreme Court had denied his Petition For Writ Of Certiorari well before he filed his § 2255 Motion and, indeed, well before four years had run. Id. Conspicuously absent from the affidavits offered by Ingram to support his claim that his criminal counsel was uncommunicative is any clear indication of when Ingram or his "liaison" finally began asking criminal counsel about the status of his case. Ms. Gibson's Affidavit, which is attached to Ingram's § 2255 Motion, states only that, "in the last two years"—that is, the two years prior to the filing of his § 2255 Motion in August of 2014—she acted as a "liaison" between Ingram and his criminal counsel. See § 2255 Motion, Affidavit of Fredetta Gisbson (Civ. docket no. 1-2), ¶ 2. The statute of limitations for any § 2255 Motion had already run, however, more than a year before Ms. Gibson's efforts purportedly began. Ingram's own statement that, "following the conclusion of his direct appeal, and since the submission of his Petition to the Supreme Court, [he] repeatedly inquired with Appointed Counsel as to the status of [his] Supreme Court Petition" is too vague to establish whether those inquiries were reasonably "diligent."
More importantly, as the respondent points out, even though Ingram's criminal counsel was clearly uncommunicative, nothing prevented Ingram or his "liaison" from requesting new counsel, contacting the clerk of the district court regarding the status of his case, or filing a request for a status update, well before April or May of 2014. The public docket in Ingram's criminal case clearly indicates that the United States Supreme Court denied his Petition For Writ Of Certiorari on October 8, 2010. See Crim. docket no. 235. Nothing prevented Ingram from asking someone other than his criminal counsel to check what was on the public docket or calling or writing the clerk of court for the district court, himself, to request such a docket check. Cf. Anjulo-Lopez, 541 F.3d at 818-19 (finding that the petitioner had not acted diligently, where he waited an entire year before he even tried to contact his attorney about his appeal, and the lack of any notice of appeal was a matter of public record, which a duly diligent person in the prisoner's position could have discovered).
Ingram is not entitled to equitable tolling of his § 2255 Motion, and the respondent's Motion To Dismiss is granted to that extent.
In addition, or in the alternative, to his equitable tolling argument, Ingram argues that his § 2255 Motion is timely pursuant to a different "triggering" provision, § 2255(f)(4), which provides that the one-year period runs from the time that the petitioner discovers new facts. Ingram's habeas counsel points specifically to Ingram's fourth ground, which is for violation of equal protection and due process rights as a result of the § 851 enhancement of his sentence. Ingram's pro se brief, attached to his § 2255 Motion, however, also suggests that Ingram is arguing that this timeliness argument applies to his second ground for relief, which is that his § 851 enhancement violates the Eighth Amendment.
Ingram contends that, on August 16, 2013, in United States v. Young, 960 F.Supp.2d 881 (N.D. Iowa 2013), I revealed the "jaw-dropping" disparity in the imposition of 21 U.S.C. § 851 enhancements between this district and other federal districts. Ingram argues that the information on which the Young decision was based was impossible for an incarcerated person to discover—indeed, he points out that the prosecutor in the Young case was unaware of this disparity. Ingram contends that some reasonable period of time had to elapse between the filing of the Young decision, its appearance in the prison library system, and his discovery of it. Thus, he contends that his § 2255 Motion incorporating claims based on the "new facts" about the disparity disclosed in Young were timely filed just over a year after the Young decision was filed. He contends that prior decisions addressing the constitutionality of prosecutorial discretion and other aspects of § 851 did not give notice of the possible viability of his as applied challenges.
The respondent's terse reply is that Young does not render § 851 unconstitutional. Thus, the respondent argues, the discussion in Young of disparities in application of § 851 among the federal districts does not qualify as "new facts" to support Ingram's claims for relief relating to his § 851 enhancement.
Section 2255(f)(4) states that the one-year statute of limitations begins to run, under that provision, from "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). As the Eighth Circuit Court of Appeals has explained,
Deroo v. United States, 709 F.3d 1242, 1245 (8th Cir. 2013).
I disagree with the respondent's apparent contention that the Young decision would only be a "new fact" within the meaning of § 2255(f)(4) if it held that § 851 was unconstitutional. Such a holding, which certainly is not to be found in the Young decision, would be "new law," not a "new fact." The respondent misses the point that the "new facts" on which Ingram relies are the facts presented in Young about the disparate application of § 851 among the various federal districts, not the Young decision itself.
A straight-forward application of § 2255(f)(4), therefore, shows that Ingram's claims relating to the constitutionality of § 851, because of its disparate application among the federal districts, are timely. First, Ingram has shown the existence of "new facts." See Deroo, 709 F.3d at 1245. My decision in Young points out that the Sentencing Commission's "first and only, additional targeted coding and analysis project on nationwide application of 21 U.S.C. § 851 recidivist enhancements [was] as part of the Report To The Congress: Mandatory Minimum Penalties In The Federal Criminal Justice System (Commission's 2011 Report)." 960 F. Supp. 2d at 892. Thus, the Commission's 2011 Report was not published until about or after the one-year statute of limitations for Ingram's § 2255 Motion had run. The Young decision provides an analysis of the "new" data about the application of § 851 revealed by the Commission's 2011 Report, 960 F. Supp. 2d at 892-902, which, to the best of my knowledge and belief, was a publication of "new" facts, or at least "new" factual comparisons that might be specifically relevant to Ingram's case, almost two more years after the Commission's 2011 Report.
Second, Ingram has demonstrated "that he acted with diligence to discover the new fact[s]." See Deroo, 709 F.3d at 1245. Only "maximum feasible diligence," not the "reasonable diligence" required, see id., could have led an incarcerated person to discover the Commission's 2011 Report and to make the comparisons identified in my Young decision, without that decision, in light of the limited library resources generally available to prisoners. The respondent does not dispute, and I agree with, Ingram's contention that some reasonable period of time had to elapse between the filing of the Young decision, its appearance in the prison library system, and his discovery of it. Again, I have held that a prisoner does not necessarily have to act "immediately" to file a § 2255 Motion, after becoming aware that his counsel had not taken appropriate action or that the § 2255(f) deadline was imminent or had passed, but must act only with "reasonable diligence." See Koons, 995 F. Supp. 2d at 915. Similarly, I now hold that a prisoner does not have to act "immediately" after learning of "new facts" that might support a claim for § 2255 relief, but must only act with "reasonable diligence." I find that Ingram has met that requirement by filing his § 2255 Motion, asserting claims based on "new facts" about the disparate application of § 851, only a few days past one year from the publication of Young, and less than one year after he was reasonably likely to have actually discovered that decision.
While I take no position at this time on the merits, or even the factual plausibility of the pleading, of Ingram's claims based on disparate application of § 851, I do find that those claims are timely under § 2255(f)(4). Therefore, the respondent's Motion To Dismiss is denied as to those claims.
Dismissal of some of Ingram's claims for § 2255 relief as untimely raises the question of whether or not he is entitled to a certificate of appealability on those claims. In order to obtain a certificate of appealability on those claims, Ingram must make a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000); Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). "A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings." Cox, 133 F.3d at 569. Moreover, the United States Supreme Court reiterated in Miller-El v. Cockrell that, "`[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). I conclude that Ingram has failed to make a substantial showing that his arguments that any of his claims are equitably tolled are debatable among reasonable jurists, that a court could resolve differently any of the issues raised concerning equitable tolling of those claims, or that any question as to equitable tolling of those claims deserves further proceedings. Consequently, a certificate of appealability is denied as to equitable tolling of Ingram's claims. See 28 U.S.C. § 2253(c)(1)(B); Miller-El, 537 U.S. at 335-36; Cox, 133 F.3d at 569.
Upon the foregoing,
1. The respondent's December 31, 2014, Motion To Dismiss (Civ. docket no. 3) is
2. Consequently, the following claims in Ingram's August 27, 2014, pro se § 2255 Motion (as originally numbered) are
3. Ingram shall have
4. The respondent shall have
5. The court will set a further briefing schedule, as appropriate, after the filing of the respondent's answer or motion.
