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United States v. Williams

United States District Court, N.D. California, San Jose Division

November 18, 2019



          LUCY H. KOH, United States District Judge.

         Before the Court is the Government's motion to dismiss Defendant Williams's October 31, 2017 motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 448. In its motion, the Government argued that Defendant's motion is untimely and that equitable tolling is not appropriate. For the following reasons, the Court requires additional briefing before it can rule on the Government's motion. Because the Court believes the aid of defense counsel is needed, the Court administratively stays the case and orders the Federal Public Defender to identify a Criminal Justice Act panel attorney who is available to take this case.


         Because this case has spanned many years and the original counsel, probation officer, and judge have either retired or are no longer assigned to the case, the Court reconstructs the relevant case history to the extent possible.

         On January 30, 2008, a grand jury in the Northern District of California returned an indictment against Defendant charging him with a single count of arson under 18 U.S.C. 844(i). The case proceeded to trial before United States District Judge Jeremy Fogel on January 9, 2009. Leading up to and during the trial, Defendant was represented by Assistant Federal Public Defender Manuel Araujo. On January 29, 2009, a jury found Defendant guilty of arson.

         Sentencing was originally set for April 15, 2009. However, on March 5, 2009, Judge Fogel granted the parties' stipulation relieving the Federal Public Defender as Defendant's attorney and substituting Susan Dondershine as defense counsel.[1] ECF No. 207. Judge Fogel therefore continued the sentencing to June 24, 2009. Sentencing did not occur for nearly four years, though, due to various competency proceedings. The Court describes these proceedings to the extent possible below because they are relevant to Defendant's § 2255 motion.

         First, on April 17, 2009, Judge Fogel granted Defendant's motion (ECF No. 209) to determine the mental competency of Defendant. ECF No. 214. In his order, Judge Fogel found that “Defendant Donald Ray Williams may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to assist properly in his defense” and ordered Defendant “be committed to the custody of the Attorney General for hospitalization for treatment in a suitable facility.” Id. At the same time, Judge Fogel suspended the criminal proceedings. Id. However, at a later competency hearing on November 4, 2009, Ms. Dondershine stated that she no longer had doubts as to whether Defendant was competent. ECF No. 250 at 2-3. Accordingly, at that hearing, Judge Fogel found Defendant to be competent to proceed with post-trial motions and sentencing. Id. at 3.

         On January 4, 2019, however, the Court received a report by defense expert Dr. Silva in which Dr. Silva opined that Defendant is mentally incompetent. ECF No. 298 at 3, 5. Based upon that report, Defendant filed a second motion to determine his mental competency (ECF No. 294), which the Court granted on January 12, 2011. ECF No. 297. The Court therefore ordered that the Bureau of Prisons perform an evaluation of Defendant's competency. Id. The competency evaluation was completed by Dr. Hope on March 30, 2011. See ECF No. 307 at 5; ECF No. 341 at 4. On May 6, 2011, Judge Fogel found, pursuant to 18 U.S.C. § 4244(d), “that the defendant is presently suffering from a mental disease or defect and that he should, in lieu of being sentenced to imprisonment, be committed to a suitable facility for care or treatment.” ECF No. 311.

         After over a year of treatment, on August 20, 2012, Judge Fogel ordered that Defendant be reevaluated by the Bureau of Prisons for competency. ECF No. 328. Dr. Wolfson completed the evaluation and concluded that Defendant was competent to be sentenced. ECF No. 395 at 2-3. At a status conference on January 31, 2013, Judge Fogel found that Defendant's “health is restored to the point where he can . . . participate in the proceedings” and reinstated sentencing proceedings. ECF No. 396 at 2-3.

         On May 22, 2013, Judge Fogel sentenced Defendant to 240 months imprisonment plus 3 years of supervised release. ECF No. 349; see ECF No. 354 (transcript). Defendant was also ordered to pay a $100 special assessment and $28, 619, 275.46 in restitution. ECF No. 350. Defendant moved for reconsideration on June 3, 2013 (ECF No. 355), and Judge Fogel denied the motion on July 1, 2013 (ECF No. 365).

         On July 12, 2013, Defendant filed a notice of appeal with the Ninth Circuit appealing the judgment (“first appeal”). ECF No. 369. The first appeal was assigned case number 13-10381 by the Ninth Circuit. ECF No. 371.

         While the first appeal was pending, on September 19, 2013, Defendant filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. ECF Nos. 407, 403 (declaration of Manuel Araujo in support of the motion). Because a defendant in a federal criminal prosecution generally is not entitled to have a direct appeal and a § 2255 motion considered simultaneously, Judge Fogel “defer[red] consideration of and administratively terminat[ed]” the § 2255 motion pending disposition of the appeal numbered 13-10381. ECF No. 414 (citing Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988)). In his order, Judge Fogel stated, “Following issuance of the mandate by the Court of Appeals, the motion will be reinstated upon Defendant's request.” Id.

         In response, Defendant filed a notice of appeal on January 16, 2014 that appealed Judge Fogel's order deferring consideration of the § 2255 motion (“second appeal”). ECF No. 419. The second appeal was assigned case number 14-15147 by the Ninth Circuit. ECF No. 422.

         Neither of Defendants' appeals was briefed and decided on the merits. On March 4, 2014, the Ninth Circuit granted appellant's motion for voluntary dismissal of the first appeal. ECF No. 423. Shortly thereafter, on March 21, 2014, ...

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