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United States v. Titties

United States District Court, W.D. Oklahoma

August 13, 2019




         This matter comes before the Court on Defendant's Motion to Vacate or Modify Sentence Under 28 U.S.C. § 2255. Defendant is incarcerated and appears pro se. The Court previously entered an Order requiring Defendant to show cause why the case should not be dismissed as untimely as it appeared from the face of the motion that the one-year time limit for filing such motion had expired. Having received Defendant's response (Doc. No. 117), the Court finds as follows.

         By Indictment Defendant was charged with possession with intent to distribute methamphetamine and being a felon in possession of a firearm. A Superseding Information was filed on August 11, 2015, asserting a single count, felon in possession of a firearm. Pursuant to a plea agreement, Defendant pleaded guilty to this single count on August 19, 2015. The Court accepted the plea and sentenced Defendant to 188 months' imprisonment. Defendant appealed and on March 24, 2017, the Tenth Circuit vacated the Court's judgment and remanded the matter for resentencing, concluding this Court had improperly sentenced Mr. Titties as an Armed Career Criminal under 18 U.S.C. § 924(e)(1). United States v. Titties, 852 F.3d 1257 (10th Cir. 2017). On June 12, 2017, the Court re-sentenced Defendant to 120 months imprisonment in accordance with the Tenth Circuit's Order. Defendant appealed the 120-month sentence and on November 14, 2017, the Tenth Circuit entered an order enforcing Defendant's waiver of his appellate rights as set forth in the plea agreement and dismissed his appeal. The Tenth Circuit issued the mandate on December 6, 2017.

         Defendant filed the instant § 2255 Motion on June 28, 2019, alleging counsel's assistance was constitutionally ineffective with regard to Defendant's request to withdraw his guilty plea.[1] Defendant asks the Court to reduce his sentence, asserting that a four-level adjustment under 2K2.1(b)(6)(B) was improper upon resentencing, although he also states that but for counsel's ineffective performance he would not have maintained his guilty plea, but rather would have chosen to proceed to trial.

         Motions under § 2255 must generally be filed within one year after the defendant's conviction becomes final. See United States v. McGaughy, 670 F.3d 1149, 1152 n.1 (10th Cir. 2012) (citing 28 U.S.C. § 2255(f)(1)). A conviction becomes final for purposes of § 2255(f)(1) when the time for filing a petition for certiorari contesting the decision of the appellate court expires, here 90 days after entry of the November 14, 2017 judgment. Thus, Defendant's conviction became final on February 12, 2018 and the one year-year period for filing a § 2255 motion expired on February 12, 2019. Defendant's motion was filed more than four months after expiration of the deadline.

         The one-year period is subject to both statutory and equitable tolling. In the section of the § 2255 motion addressing timeliness, Defendant essentially conceded that his motion was untimely.

The 10th Circuit has limited equitable tolling to “rare and exceptional circumstances.” Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003). This, because Movant has been steadfast, albeit unsuccessful, in obtaining court documents from [now] adversarial counsel (Michael Reese) for the past year, in which to prosecute § 2255, uncontrollable circumstances prevented Petitioner from timely filing. Juxtaposition this salient fact, Movant's correspondence from counsel (see, letter dated 11-16-17) drew vague inferences, was silent, whether he (counsel) would file 2255. (See also, attached letter to Judge Russell and Motion for Transcripts at Government's Expense).

(Doc. No. 115, p. 12). In response to the Court's Show Cause Order, Defendant asserts that statutory tolling may also be appropriate under § 2255(f)(2) and that he is entitled to equitable tolling.

         28 U.S.C. § 2255(f)(2) provides an alternative starting date for the running of the statute of limitations period, from “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.” Although Defendant invokes § 2255(f)(2), none of the facts set forth in the filing indicate a basis for concluding governmental interference with his filing of a § 2255 motion.[2]

         As noted Defendant also asserts that equitable tolling is appropriate. Equitable tolling is available “when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.” United States v. Halcrombe, 700 Fed.Appx. 810, 815 (10th Cir. 2017). To the extent Defendant complains that lack of access to transcripts and other court records impeded his ability to timely file his motion, the Tenth Circuit has rejected such a contention.

In any event, this court has repeatedly rejected the argument that difficulty in obtaining trial records constitutes “extraordinary circumstances” justifying equitable tolling. See, e.g., Levering v. Dowling, 721 Fed.Appx. 783, 788 (10th Cir. 2018) (“[N]either the difficulty in obtaining trial court transcripts nor [applicant's] limited time in the law library are ‘extraordinary circumstances' that would justify the use of equitable tolling.”); Porter v. Allbaugh, 672 Fed.Appx. 851, 857 (10th Cir. 2016) (“[E]ven if we gave [applicant] the benefit of the equitable-tolling arguments that he advanced before the district court-viz., general difficulties in obtaining trial transcripts and in accessing the prison law library-we would conclude that reasonable jurists would not find debatable the district court's determination that [applicant's] general grievances fail to constitute extraordinary circumstances.”).

Kenneth v. Martinez, 771 Fed.Appx. 862, 865 (10th Cir. 2019). Accordingly, the lack of access to transcripts and other filings does not provide a basis for equitable tolling.

         Defendant also relies on what he asserts were ambiguous statements by court-appointed appellate counsel regarding counsel's intention to file a § 2255 motion on Defendant's behalf. The letter, which accompanied a copy of the order dismissing Defendant's direct appeal ...

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