United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI Chief United States District Judge
the Court are Defendant Troy Dewayne Howard's pro
se Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody
[Doc. No. 15] and Motion to Amend 28 U.S.C. § 2255
Motion [Doc. No. 16]. In response, the United States asserts
that Defendant's motions are time-barred under 28 U.S.C.
§ 2255(f). [Doc. No. 18]. Defendant has responded in
opposition to the United States' request that
Defendant's motions be dismissed as untimely. [Doc. No.
19]. Upon examination of the parties' submissions and the
case record, the Court finds that Defendant's § 2255
motion and amended motion should be dismissed.
AND PROCEDURAL BACKGROUND
August 12, 2013, Defendant pled guilty to a one-count
Information charging him with transportation of child
pornography, in violation of 18 U.S.C. § 2252A(a)(1). On
January 30, 2014, Defendant was sentenced to the custody of
the Bureau of Prisons for a term of imprisonment of 235
months. Defendant did not file a direct appeal. Defendant
filed his § 2255 motion on September 11, 2018.
2255 imposes a one-year statute of limitations for federal
prisoners to bring their motion. 28 U.S.C. § 2255(f).
The limitation period runs from the latest of four specified
dates. Id. In most cases, the operative date for
measuring the limitation period is “the date on which
the judgment of conviction becomes final.” 28 U.S.C.
§ 2255(f)(1). The Court imposed judgment on January 30,
2014, and the written judgment was filed on the docket on
January 31, 2014. Because no appeal was taken, the judgment
became final 14 days later on February 14, 2014, when the
time to appeal expired. See Fed. R. App. P. 4(b);
see also United States v. Prows, 448 F.3d 1223,
1227-1228 (10th Cir. 2006) (“If the
defendant does not file an appeal, the criminal conviction
becomes final upon the expiration of the time in which to
take a direct criminal appeal.”). The one-year period
for filing a motion under § 2255 began to run on
February 15, 2014, and expired on February 16, 2015. See
United States v. Penn, 153 Fed.Appx. 548, 550
(10th Cir. Nov. 10, 2005)
(unpublished) (concluding that the day of the act from
which the designated period of time begins to run shall not
be included and that the last day of the limitations period
cannot be a Saturday, a Sunday, or a legal holiday). To
excuse his late filing, Defendant invokes the doctrine of
the doctrine of equitable tolling, [the Tenth Circuit] will
occasionally toll the time bar facing a habeas petitioner,
though ‘only in rare and exceptional
circumstances.'” United States v.
Alvarado-Carrillo, 43 Fed.Appx. 190, 192
(10th Cir. May 17, 2002)
(unpublished) (quoting Gibson v. Klinger, 232
F.3d 799, 808 (10th Cir. 2000) (internal quotation
marks omitted)). A prerequisite to any application of
equitable tolling, however, is a finding that “[the]
petitioner [has] diligently pursue[d] his federal habeas
claims.” Gibson, 232 F.3d at 808; see also
Marsh v. Soares, 223 F.3d 1217, 1220 (10th
Cir. 2000) (“[T]his equitable remedy is only available
when an inmate diligently pursues his claims and demonstrates
that the failure to timely file was caused by extraordinary
circumstances beyond his control.”).
asserts that he “has been in and out of mental
hospitals since the age of [seven] … has mild mental
retardation … and suffers from Schizoaffective
disorder, Bipolar disorder and borderline intellectual
functioning.” [Doc. No. 15 at 13]. He contends that he
was unable to pursue his federal habeas claims because of his
mental illness and mental retardation; thus, he asks that the
Court apply the equitable tolling doctrine.
“Allegations of mental incompetence alone, however, are
generally insufficient to warrant equitable tolling.”
Wiegand v. Zavares, 320 Fed.Appx. 837, 839
(10th Cir. April 7, 2009)
(unpublished). Equitable tolling based on mental
incapacity “is warranted only in ‘exceptional
circumstances' that may include an adjudication of
incompetence, institutionalization for mental incapacity, or
evidence that the individual is not ‘capable of
pursuing his own claim' because of mental
incapacity.” Id. (quoting Biester v.
Midwest Health Services, Inc., 77 F.3d 1264,
1268 (10th Cir. 1996)). Defendant “bears a
strong burden to show specific facts to support his claim of
extraordinary circumstances and due diligence.”
Yang v. Archuleta, 525 F.3d 925, 928
(10th Cir. 2008).
support his claim, Defendant attaches a psychological report
prepared by Curtis T. Grundy, Ph.D., a licensed psychologist,
who evaluated Defendant on November 5, 2013, after
Defendant's plea but before his sentencing. [Doc. No.
15-1]. Defendant also attaches a letter that an inmate wrote
on Defendant's behalf to the Wrongful Conviction Center
on June 11, 2018. [Doc. No. 15-2].
is no evidence of record that Defendant has ever been
adjudicated incompetent. He did undergo inpatient
hospitalizations and residential treatment due to emotional
and behavioral problems as a child and an adolescent.
Further, during his incarceration in the Oklahoma Department
of Corrections he was transferred to the Joseph Harp Mental
Health Unit before his discharge in 2008. However,
Defendant's last documented mental health treatment was
in 2009. Although Dr. Grundy diagnosed him with
Schizoaffective Disorder, Bipolar Type, and Borderline
Intellectual Functioning in 2013, Dr. Grundy never expressed
concerns about Defendant's competency or his ability to
participate in legal proceedings. Defendant contends in his
letter to the Wrongful Conviction Center that he did not
understand his actions; however, Dr. Grundy opined that it
was “evident” that Defendant “retained
cognizance of the nature and wrongfulness of his
behavior.” [Doc. No. 15-1 at 10].
has not shown that he diligently pursued his federal habeas
claims or that there was an impediment to a timely filing.
Defendant was able to file his § 2255 motion on
September 11, 2018, but he does not explain why he could not
have filed it within the one-year limitations period. The
materials he does provide do not show that his mental health
significantly impaired his ability during the one-year
limitations period to file his § 2255 motion. See,
e.g., United States v. Espinoza, 536 Fed.Appx. 833, 834
(10th Cir. Nov. 1, 2013)
(unpublished) (denying the defendant's request for a
certificate of appealability where district court rejected
the defendant's claim of equitable tolling because the
defendant failed to show that he was diligent in pursuing his
post-conviction remedies and failed to demonstrate that his
mental illness significantly impaired his ability to file a
timely § 2255 motion); United States v.
Sayetsitty, 2006 WL 1722300, at *4 (D. Ariz. June 19,
2006) (rejecting movant's argument for equitable tolling
based on physical illness and mental incompetency where the
movant failed to present any evidence that the alleged
infirmity and incompetence prevented him from filing a timely
§ 2255 motion).
Defendant's filings demonstrate his “competence to
understand the proceedings, and to marshal arguments and
authorities in support of his cause.”
Sayetsitty, 2006 WL 1722300, at *4 (internal
quotation marks and citation omitted). Defendant has not
presented any evidence, such as medical records or affidavits
signed by physicians who have examined or treated him in
prison, to support a finding that a mental illness prevented
him from filing a § 2255 motion on time. See Shafer
v. Knowles, 2003 WL 22127878, at *2-3 (N.D. Cal. Aug.
14, 2003) (holding that the petitioner had not shown that his
mental illness rendered him unable to pursue his legal rights
during the relevant time period). Defendant has not
demonstrated the extraordinary circumstances required to
justify equitable tolling of the limitations period for
seeking relief pursuant to § 2255.
these reasons, the Court finds that Defendant cannot overcome
the one-year time limit of § 2255(f), and his §
2255 motion and amended motion are time barred. The Court