United States District Court, E.D. California
FINDINGS AND RECOMMENDATION
ALLISON CLAIRE, Magistrate Judge.
Petitioner Donna Rowe is a federal prisoner proceeding in pro per with a motion attacking her conviction and sentence under 28 U.S.C. § 2255. ECF No. 462. Petitioner's motion presents four grounds for relief including three claims of ineffective assistance of counsel and one claim of sentencing error. Respondent has filed a motion to dismiss based on the statute of limitations, ECF No. 469, and petitioner has filed an opposition, EFC No. 472. For the reasons set forth below, the undersigned recommends that the motion to dismiss be granted.
I. Factual and Procedural Background
Following a jury trial, petitioner was convicted of nine counts of mail fraud, three counts of money laundering, and one count of conspiracy. See ECF No. 290. On February 23, 2010 she was sentenced to 48 months imprisonment followed by 24 months of supervised release. ECF Nos. 425 (Amended Judgment and Commitment Order); 365 (Judgment and Commitment Order).
Petitioner appealed her convictions to the Ninth Circuit Court of Appeals which affirmed the district court's judgment on March 5, 2012. See ECF No. 429 (memorandum opinion); see also United States v. Kalfsbeek, et al., 470 Fed.Appx. 656 (9th Cir. 2012). Petitioner then filed a petition for writ of certiorari with the United States Supreme Court on May 23, 2012 which was denied on October 1, 2012. See ECF No. 462 at 2; see also http://www.supremecourt.gov/. Search.aspx?FileName=/docketfiles/11-10522.htm (Supreme Court docket). Movant filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 on October 3, 2013 raising multiple claims of ineffective assistance of trial counsel. ECF No. 462. The proof of service attached to the motion indicates that it was "delivered to the Federal Court at 501 I Street, Sacramento" on October 1, 2013. ECF No. 462 at 13.
II. Motion to Dismiss
Respondent moved to dismiss the instant Section 2255 motion on the basis that it was time-barred since it was not received by the Clerk's Office until October 3, 2013, two days after the statute of limitations expired. ECF No. 469 at 3.
III. Movant's Opposition to Motion to Dismiss
In her opposition, petitioner concedes two salient points. First and foremost, she concedes that the statute of limitations expired on October 1, 2013. ECF No 472 at 1. And, most importantly, she concedes that her Section 2255 motion was not filed until October 3, 2013. Id . at 2. Recognizing the legal import of these two facts, petitioner explained the basis for her untimely filing. On the date that the Section 2255 motion was due to be filed, petitioner realized that she "had inadvertently misread the October 1st date of the denial of certiorari as October 12, 2012." ECF No. 472 at 1. Although she caught this human error in time to correct it, her process server arrived at the federal court house doors after the close of business on October 1, 2013. Id . at 2, 6 (parking receipt dated October 1, 2013 at 8:17 pm). Since the court no longer utilizes an after-hours mailbox depository, petitioner's process server had to return the Section 2255 motion to her to deposit in the mail on October 2, 2013. Id . The court did not receive and thus file her Section 2255 motion until the following day, October 3, 2013. Id.
Petitioner also contends in her opposition that she was still "in custody" in the form of home confinement on the date that she filed the Section 2255 motion. Id . at 2. Additionally, petitioner alleges that she had difficulty obtaining "the documents necessary to coordinate the evidence" in support of her claims from her former trial lawyer, who delayed in providing her with his file. Id . at 3. However, she concedes that she had access to the documents necessary to support her claims as of July 26, 2013. Id . at 4.
IV. Relevant Law
Section 2255(f) (1) of Title 28 of the United States Code contains a one year statute of limitations for filing a federal prisoner's habeas corpus petition. The one year clock commences from several alternative triggering dates which are defined as "(1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or law 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 constitutional right asserted was initially 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 parties agree that petitioner's conviction became final on October 1, 2012 following the denial of certiorari review by the United States Supreme Court. See 28 U.S.C. § 2244(d)(1)(A). Therefore, the statute of limitations commenced the next day and expired one year later on October 1, 2013. See Patterson v. Stewart , 251 F.3d 1243 (9th Cir.) (using the anniversary date method for calculating the statute of limitations), cert. denied, 534 U.S. 978 (2001). The instant Section 2255 motion filed on October 3, 2013 was thus filed two days late, absent any statutory or equitable tolling.
A habeas petitioner is entitled to equitable tolling of AEDPA's one-year statute of limitations only if the 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. See Holland v. Florida , 560 U.S. 631 (2010); Ramirez v. Yates , 571 F.3d 993, 997 (9th Cir. 2009). An "extraordinary circumstance" has been defined as an external force that is beyond the inmate's control. Miles v. Prunty , 187 F.3d 1104, 1107 (9th Cir. 1999). The diligence required for equitable tolling purposes is ...