ROBERT JONES, District Judge.
Presently before the Court is Petitioner Kurt J. Myrie's Motion to Extend Time to File Initial § 2255 (#185) and Petitioner's Motion to Vacate under 28 U.S.C. § 2255 (#189). For the reasons provided herein, the Court declines to rule on the motion to extend time and denies the motion to vacate.
On April 21, 2008, pursuant to Petitioner's guilty plea, the Court sentenced him to 194-months imprisonment as follows: (1) Count One: 60 months; (2) Count Two: 110 months, concurrent to the sentence imposed on Count One; and (3) Count Three: 84 months, consecutive to the sentence imposed on Counts One and Two. (Judgment (#143) at 1-2).
Through his counsel, Petitioner subsequently appealed his sentencing to the Ninth Circuit Court of Appeals on May 2, 2008. (Notice of Appeal (#146)). On appeal, Petitioner argued that the District Court violated his due process and jury trial rights by imposing an upward departure based on uncharged criminal acts. (Ninth Cir. Op. (#180) at 6-7; see also Opening Brief of Defendant-Appellant Kurt Myrie, United States v. Myrie, No. 08-10206, 2008 WL 5010929 (9th Cir. 2009)). Petitioner also argued that the Court: (a) sentenced him on redundant charges in violation of the Double Jeopardy Clause, (b) improperly sentenced him for brandishing (as opposed to using or possessing) a firearm, and (c) violated the Confrontation Clause in allowing hearsay evidence about Petitioner's past criminal activities at sentencing. (Ninth Cir. Op. (#180) at 5-6; see also Opening Brief of Defendant-Appellant Kurt Myrie, Myrie, 2008 WL 5010929 (No. 08-10206)). The Ninth Circuit rejected the above arguments and affirmed Petitioner's sentence on November 5, 2009. (Ninth Cir. Op. (#180) at 2, 5-7). Petitioner did not appeal the Ninth Circuit's decision to the U.S. Supreme Court.
On January 24, 2011, Petitioner filed a Motion to Extend Time to File Initial § 2255 Motion (#185) which requested an additional 30 days to file his § 2255 motion because he "just received his papers from his attorney." (Motion to Extend Time to File Initial § 2255 Motion (#185) at 1). Petitioner filed his Motion to Vacate under 28 U.S.C. § 2255 (#189) on August 9, 2011. (See Motion to Vacate under 28 U.S.C. § 2255 (#189)). That same day, the Court received a letter from Petitioner explaining his delay in filing the § 2255 motion. (See Letter from Kurt Myrie (#188)). Petitioner alleged that various institutional lockdowns, his transfer to the "Special Housing Unit," and the loss of most of his "legal work" all contributed to his late filing. (Id. at 1).
The Court notes that Petitioner may be able to demonstrate, after significant factual and evidentiary supplementation, that the Court should consider his Motion to Vacate under 28 U.S.C. § 2255 (#189) timely under the doctrine of equitable tolling. However, the issue of timeliness is ultimately moot because Petitioner's motion under § 2255 plainly does not entitle him to relief, and the Court must therefore deny his motion.
Title 28, United States Code, Section 2255 allows a federal prisoner to file a motion to contest his continued imprisonment for any of the following causes: (1) the Court imposed a sentence which violates the Constitution or laws of the United States, (2) the Court lacked jurisdiction to impose the sentence, (3) the sentence exceeds the maximum authorized by law, or (4) the sentence is otherwise vulnerable to collateral attack. 28 U.S.C. § 2255(a). Subject to limited exceptions, the Court must dismiss an untimely § 2255 motion. See 28 U.S.C. § 2255(f); see also Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L. Ed. 2d 88 (2003). Similarly, the Court must dismiss a § 2255 motion when "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), 28 U.S.C. § 2255. If the Court does not deny the motion, it must order the United States Attorney to respond to the petitioner's § 2255 motion. Id.
In Part I of this Order, the Court finds that Petitioner may be able to demonstrate that he timely filed his § 2255 motion through the doctrine of equitable tolling. As such, the Court considers and rules on the merits of Petitioner's § 2255 motion in Part II.
Generally, the Court dismisses untimely motions under § 2255. See 28 U.S.C. § 2255(f); see also Clay, 537 U.S. at 524-25. The Ninth Circuit recognizes equitable tolling as an exception to the general bar on untimely § 2255 motions. United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004).
Here, the Court must decide whether Petitioner timely filed his Motion to Vacate under 28 U.S.C. § 2255 (#189). If not, the Court has to determine what effect, if any, Petitioner's Motion to Extend Time to File Initial § 2255 (#185) has on the timeliness of his § 2255 motion, and whether the Court should equitably toll Petitioner's § 2255 motion.
Petitioner Kurt J. Myrie did not timely file his § 2255 motion in strict conformance with the time restrictions Congress promulgated in 28 U.S.C. § 2255(f).
A petitioner has one year from the date his conviction becomes final to file a § 2255 motion, unless another form of statutory tolling applies.
In this case, Petitioner's § 2255 motion was due February 3, 2011, roughly six months before Petitioner actually filed his § 2255 motion on August 9, 2011.
Because Petitioner did not file a timely § 2255 motion in strict accordance with 28 U.S.C. § 2255(f), the Court must consider whether it has the authority to grant Petitioner's Motion to Extend Time to File Initial § 2255 (#185), and, if not, whether Petitioner has demonstrated that the Court should equitably toll his Motion to Vacate under 28 U.S.C. § 2255 (#189).
There is currently no guiding precedent from the Ninth Circuit or the U.S. Supreme Court regarding the scope of the Court's power to extend the time for a petitioner to file a § 2255 motion, with the notable exception of equitable tolling. Battles, 362 F.3d at 1197 (equitable tolling applies to § 2255 motions). For this reason, the Court declines to rule on Petitioner's Motion to Extend Time to File Initial § 2255 (#185).
Persuasive precedent from the Second Circuit Court of Appeals could preclude the Court from ruling on Petitioner's Motion to Extend Time to File Initial § 2255 (#185). See United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000). In Leon, the Second Circuit held that a request to extend time to file a § 2255 motion did not present a constitutional case or controversy; therefore any ruling on the timeliness of a § 2255 motion which the petitioner had not yet filed would be unconstitutional as an advisory opinion. Id.
Even if the Court chose not to apply Second Circuit precedent,
Without the benefit of controlling precedent from the Ninth Circuit or U.S. Supreme Court, the Court declines to rule on Petitioner's Motion to Extend Time to File Initial § 2255 (#185). However equitable tolling may entitle Petitioner to have his § 2255 motion treated as timely, notwithstanding its actual lateness. Battles, 362 F.3d at 1197.
Petitioner alleges facts in his Motion to Extend Time to File Initial § 2255 (#185) and in the Letter from Kurt Myrie (#188) which, if supplemented by additional facts and evidence, might entitle him to equitable tolling. However, the issue of timeliness does not require resolution because, as detailed in Part II of this Order, the Court denies Petitioner's § 2255 motion because it plainly does not entitle him to relief.
Equitable tolling allows the Court to accept an otherwise untimely filing as properly filed when (1) some extraordinary circumstance prevented timely filing, (2) the petitioner has diligently pursued his rights, and (3) the extraordinary circumstance caused petitioner's late filing. United States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011) cert. denied, 132 S.Ct. 436, 181 L. Ed. 2d 283 (2011). Equitable tolling inquiries "are highly fact-dependent." Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000). Petitioner ultimately "bears the burden of showing that equitable tolling is appropriate." Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005) reh'g granted and opinion modified on other grounds, 447 F.3d 1165 (9th Cir. 2006). However, when a petitioner alleges circumstances which, if fully developed, might entitle him to equitable tolling, the Court should afford him the opportunity to so develop his claim. Buckles, 647 F.3d at 892.
A petitioner's complete lack of access to his legal file may constitute an extraordinary circumstance for the purposes of equitable tolling. Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). In Yates, prison authorities moved the petitioner to administrative segregation where he could not access his legal materials. Id. The Ninth Circuit held that this complete lack of access may have been an extraordinary circumstance which called for equitable tolling. Id. However, to benefit from equitable tolling the district court still had to find on remand that the petitioner's complete lack of access caused him to file late and that the petitioner diligently pursued his rights. Id.
Here, Petitioner alleges that as of January 19, 2011, he had "just received his papers from his attorney and only request [sic] an extension of thirty days." (Motion to Extend Time to File Initial § 2255 Motion (#185) at 1). He later alleged that at some point after January 21, 2011, prison authorities transferred him to the "Special Housing Unit" where he was unable to access all of his legal work for a period and able to access only a portion of it for another period. (Letter from Kurt Myrie (#188) at 1). As in Yates, wherein the Ninth Circuit held that a petitioner's complete lack of access to his legal file could justify equitable tolling, here Petitioner claims to have had no access to his legal file for various periods before and after his § 2255 motion was due. However, Petitioner's allegations do not establish the exact dates that his legal file was unavailable to him, nor do his allegations establish that he exercised due diligence, as required for equitable tolling. Because Petitioner has alleged facts which, if developed, might entitle him to equitable tolling, typically the Court would have to afford him the opportunity to fully advance that claim. Buckles, 647 F.3d at 892.
While Petitioner may have established that the Court should allow him to supplement his claim for equitable tolling, the issue of timeliness is ultimately moot because Petitioner's § 2255 motion plainly demonstrates that no claims therein entitle him to relief.
Since Petitioner, through significant factual and evidentiary supplementation, may be able to demonstrate that the Court should equitably toll his otherwise untimely Motion to Vacate under 28 U.S.C. 2255 (#189), the Court will reach the merits of his § 2255 motion. The Court must deny Petitioner's Motion to Vacate under 28 U.S.C. § 2255 (#189) on the merits because the claims therein plainly do not entitle Petitioner to relief. See Rule 4(b), 28 U.S.C. § 2255.
The Court's standard for preliminary review of § 2255 motions compels it to dismiss a petitioner's claim if it plainly does not entitle him to relief. Rule 4(b), 28 U.S.C. § 2255. Otherwise, the Court must order the United States Attorney to respond to the petitioner. Id.
Petitioner alleges five claims in his Motion to Vacate under 28 U.S.C. § 2255 (#189). First, he alleges that the Court did not inform him of the nature of charges and proceedings which "left the defendant at a disadvantage as to how to plead." (Motion to Vacate under 28 U.S.C. § 2255 (#189) at 11). Second, he alleges that the Court erred in allowing uncharged criminal acts to factor into Petitioner's upward departure. (Id. at 4-5, 7). Third, he alleges that the Court erred in imposing a sentence enhancement "based upon the fear of the bank teller." (Id. at 6). Fourth, he alleges that the Court erred in imposing an upward departure based on Petitioner's age and risk of recidivism. (Id.). Finally, he alleges that the United States District Court for Nevada did not have, or did not demonstrate that it had, jurisdiction over the criminal proceeding. (Id. at 4, 8-10).
Petitioner cannot assert that his guilty plea was involuntary and unintelligent in a § 2255 motion. As such, that claim plainly does not entitle Petitioner to relief, meaning the Court must dismiss it. See Rule 4(b), 28 U.S.C. § 2255.
Generally speaking, "[h]abeas review is an extraordinary remedy and `will not be allowed to do service for an appeal.'" Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) (quoting Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982 (1947). In keeping with this general rule, "the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 1610, 140 L. Ed. 2d 828 (1998) (emphasis added). In other words, a petitioner cannot use a § 2255 motion to assert that his guilty plea was involuntary or unintelligent unless he first raised that issue on direct appeal. Id.
Here, Petitioner contends that this Court did not explain the nature of the charges and proceedings at issue. (Motion to Vacate under 28 U.S.C. § 2255 (#189) at 4, 11). Petitioner further asserts that the Court's failure to fully explain the charges and proceedings "left the defendant at a disadvantage as to how to plead before this kind of Court." (Id. at 11). However, Petitioner did not raise this issue on direct review. (See Ninth Cir. Op. (#180); see also Opening Brief of Defendant-Appellant Kurt Myrie, Myrie, 2008 WL 5010929 (No. 08-10206)). Because Petitioner failed to raise the voluntariness and intelligence of his plea on direct review, he has procedurally defaulted that claim for the purposes of § 2255. See Bousley, 523 U.S. at 621.
Because Petitioner cannot raise the voluntariness and intelligence of his plea in a § 2255 motion, the Court must dismiss that claim because it plainly does not entitle Petitioner to relief. See Rule 4(b), 28 U.S.C. § 2255.
Petitioner cannot use a § 2255 motion to dispute the Court's upward departure based on uncharged criminal acts. Therefore, the Court dismisses this claim. See Rule 4(b), 28 U.S.C. § 2255.
The "law of the case" doctrine generally precludes a petitioner from using a § 2255 motion to re-litigate an issue which an appellate court has fully heard and decided on direct review. Davis v. U. S., 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L. Ed. 2d 109 (1974) (recognizing an exception to the "law of the case" doctrine when material law has changed between direct review and the § 2255 motion). Indeed, "claims will ordinarily not be entertained under § 2255 that have already been rejected on direct review." Reed, 512 U.S. at 358 (Scalia, J. with Thomas, J., concurring).
In this case, Petitioner argues that the Court imposed an improper upward departure based on uncharged criminal acts. (Motion to Vacate under 28 U.S.C. § 2255 (#189) at 4-5, 7). However, Petitioner fully argued this issue before the Ninth Circuit, which unequivocally rejected Petitioner's argument. (See Ninth Cir. Op. (#180) at 6-7; see also Opening Brief of Defendant-Appellant Kurt Myrie, Myrie, 2008 WL 5010929 (No. 08-10206)). Petitioner does not cite, nor is the Court aware of, any material changes in law which might exclude the asserted claim from the "law of the case" doctrine. See Davis, 417 U.S. at 342. As such, the Court finds that this claim was fully argued and decided on direct review. See Id.; see also Reed, 512 U.S. at 358 (Scalia, J. with Thomas, J., concurring). Therefore, the Court dismisses this claim. See Rule 4(b), 28 U.S.C. § 2255.
Petitioner asserts that the Court erred in imposing a sentencing enhancement due to "the fear of the bank teller" and in imposing an upward departure due to Petitioner's age and risk of recidivism. (Motion to Vacate under 28 U.S.C. § 2255 (#189) at 6). Because procedural default bars Petitioner from asserting these sentencing errors, the Court dismisses these claims. See Rule 4(b), 28 U.S.C. § 2255.
Non-constitutional sentencing errors are not reviewable in a § 2255 motion if a petitioner could have raised those errors on appeal but failed to do so. United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994). Sentencing errors which allegedly violate the Constitution are reviewable in a § 2255 motion only if the petitioner can demonstrate cause and prejudice, or actual innocence. Bousley, 523 U.S. at 622; United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). Cause typically refers to an "external impediment" which prevented the petitioner from asserting a claim on direct review. Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2648, 91 L. Ed. 2d 397 (1986). Prejudice refers to the resulting detriment which otherwise would not have manifested. Id. at 485.
Here, the Court cannot address the alleged sentencing errors in Petitioner's § 2255 motion. Petitioner contends that these sentencing errors violated his Fifth and Sixth Amendment rights. (Motion to Vacate under 28 U.S.C. § 2255 (#189) at 6). Since Petitioner has alleged a constitutional violation, his claims are not subject to procedural default if he can show cause and prejudice or actual innocence. Ratigan, 351 F.3d at 962. However, Petitioner has made no claim for cause. Indeed, Petitioner makes no attempt to explain the cause of his failure to raise the subject sentencing errors on direct appeal. (See generally Motion to Vacate under 28 U.S.C. § 2255 (#189)). Since Petitioner has made no allegation which the Court can interpret as cause for his procedural default, Petitioner is unable to demonstrate that the Court should except his procedural default based on cause and prejudice.
Absent cause and prejudice, procedural default will preclude Petitioner's claims unless he can demonstrate actual innocence. Ratigan, 351 F.3d at 962. However, the subject claims for sentencing error do not speak to actual innocence. (See Motion to Vacate under 28 U.S.C. § 2255 (#189) at 6). Furthermore, Petitioner makes no claim to actual innocence. (See generally Motion to Vacate under 28 U.S.C. § 2255 (#189)). Petitioner only alleges an unconstitutional sentence enhancement and upward departure, neither of which relates to Petitioner's innocence or guilt.
Petitioner procedurally defaulted on his claims for constitutional sentencing error by failing to raise them on direct appeal. See Bousley, 523 U.S. at 622. The Court cannot hear those claims on a § 2255 motion because Petitioner has not claimed, much less demonstrated, cause and prejudice or actual innocence. Id. As such, Petitioner's claims do not entitle him to relief, and the Court dismisses them. See Rule 4(b), 28 U.S.C. § 2255.
Petitioner makes two purportedly jurisdictional arguments: (1) the U.S. District Court for Nevada lacked jurisdiction to preside over his underlying criminal case, and (2) that his Sixth Amendment rights were violated because the Court did not "ascertain by law, [sic] the district wherein the crime have [sic] been committed." (Motion to Vacate under 28 U.S.C. § 2255 (#189) at 4, 8-10). Because Petitioner's claims plainly do not entitle him to relief, the Court must dismiss them. See Rule 4(b), 28 U.S.C. § 2255.
Petitioner asserts that because the F.D.I.C. does not insure against theft, it did not insure the deposits he pled to stealing.
U.S. District Courts have subject matter jurisdiction over "all offenses against the laws of the United States." 18 U.S.C. § 3231. Bank robbery "is unquestionably such an offense." Ratigan, 351 F.3d at 962 (relating to a violation of 18 U.S.C. § 2113); see 18 U.S.C. § 2113. The Court establishes subject matter jurisdiction when a grand jury issues an indictment for the violation of a United States law. Ratigan, 351 F.3d at 963 (quoting De La Maza v. United States, 215 F.2d 138, 140 (9th Cir. 1954)). In federal bank robbery cases, the Court's subject matter jurisdiction originates as described above. Id. F.D.I.C. insurance does not confer subject matter jurisdiction to the Court; rather, it is an element of the federal bank robbery statute which the prosecution must prove. Id.
Here, a grand jury indicted Petitioner for, among other things, violation of 18 U.S.C. § 2113 (a) and (d), which is a law of the United States. (Indictment (#36) at 3). This indictment for violation of U.S. law established the Court's subject matter jurisdiction. See Ratigan, 351 F.3d at 963. Whether or not the F.D.I.C. insured Colonial Bank's deposits was an element of the overall crime of bank robbery which Petitioner pled guilty to. (Minutes of Proceedings (#87)). Therefore, Petitioner's argument that the F.D.I.C. did not insure the deposits he stole does not actually speak to subject matter jurisdiction. Instead, it speaks to the facts alleged in the indictment to which Petitioner pled guilty. Since Petitioner's argument actually asserts that he pled to an indictment with factually inaccurate information, the Court must consider that argument.
Petitioner cannot collaterally attack his guilty plea if it was voluntary, intelligent, and made with the assistance of competent counsel. Bousley, 523 U.S. at 621. Because Petitioner's guilty plea—which included an admission that the F.D.I.C. insured Colonial Bank's deposits— was voluntary, intelligent, and made with the assistance of competent counsel, he cannot now collaterally attack it. (See Indictment (#36) at 3; see also Minutes of Proceedings (#87)).
Petitioner's guilty plea was voluntary and intelligent because, as discussed in Part II: Section A of this order, Petitioner never asserted on direct review that his plea was involuntary or unintelligent. (See Ninth Cir. Op. (#180); see also Opening Brief of Defendant-Appellant Kurt Myrie, Myrie, 2008 WL 5010929 (No. 08-10206)). Therefore, Petitioner cannot collaterally attack his plea on those grounds. Bousley, 523 U.S. at 621. Petitioner also had the assistance of counsel when he pled guilty and when he appealed to the Ninth Circuit. (Minutes of Proceedings (#87) and Notice of Appeal (#146)). Further, Petitioner has never argued that his counsel was incompetent. As such, Petitioner cannot use a § 2255 motion to collaterally attack the factual allegations in the indictment to which he pled guilty.
Petitioner's claim that the F.D.I.C. did not insure the deposits he took plainly does not entitle him to relief. This is because his claim does not actually address the Court's subject matter jurisdiction. Instead, his claim contests facts which he has already pled guilty to and therefore are not open to collateral attack. As such, the Court dismisses this claim. See Rule 4(b), 28 U.S.C. § 2255.
According to Petitioner, the District Court failed to ascertain by law the district in which to try him. In other words, the Court did not positively establish that the District of Nevada was the proper venue for Petitioner's trial.
The Sixth Amendment's mandate that the district of trial be "previously ascertained by law" merely requires that the district for trial "be ascertained and fixed previous to the commission of the offence." United States v. Dawson, 56 U.S. 467, 487, 14 L. Ed. 775 (1853). When the framers drafted the Sixth Amendment, many feared that government officials would arbitrarily send those accused of crimes to distant and unfamiliar jurisdictions for trial. Id. To allay these fears, the Sixth Amendment requires that trials be held where the offense occurred and that the district be predetermined by law. Id. Article III
In this case, Petitioner pled guilty to bank robbery, among other offenses, in violation of United States law. (Minutes of Proceedings (#87)). The offense occurred on or about June 15, 2006, in Las Vegas, Nevada. (Indictment (#36) at 3). Prior to that date Congress had established the District of Nevada as a federal judicial district. See Act of February 27, 1865, 13 Stat. at Large 440 (1865). Since Article III of the Constitution and the Sixth Amendment set the district for trial as the state and district wherein the criminal offense took place, and because Nevada was both a state and federal judicial district more than 100 years before Petitioner committed the subject offense, the district of Petitioner's trial was indeed "ascertained and fixed previous to the commission of the offence." Dawson, 56 U.S. at 487. As such, that claim does not entitle Petitioner to relief, and the Court dismisses it. See Rule 4(b), 28 U.S.C. § 2255.
IT IS ORDERED that the Court DECLINES to rule on Petitioner's Motion to Extend Time to File Initial § 2255 (#185) for the foregoing reasons.
IT IS FURTHER ORDERED that Petitioner's Motion to Vacate under 28 U.S.C. § 2255 (#189) is DENIED.
U.S. Const. art. III, § 2, cl. 3
U.S. Const. amend. VI.