Appeal from the United States District Court for the Western District of Wisconsin. No. 3:10-cv-00295-bbc-Barbara B. Crabb, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before BAUER, CUDAHY and TINDER, Circuit Judges.
Trevor K. Ryan, now in federal prison for possessing marijuana with intent to distribute it, see 21 U.S.C. § 841(a)(1), appeals the summary denial of his motion to vacate his conviction and sentence, see 28 U.S.C. § 2255. He contends principally that the district court should have granted him an evidentiary hearing on his claim that one or both of his lawyers deprived him of the right to counsel by failing to comply with his request to file a notice of appeal. Ryan challenges the district court's conclusion that his motion was untimely. We vacate the judgment and remand the case for additional fact-finding.
Because the case turns on counsel's alleged failure to pursue a direct appeal, the facts underlying Ryan's conviction require little discussion. Briefly, Ryan flew a propeller plane loaded with more than 150 pounds of marijuana from California to Wisconsin; was caught; pleaded guilty to violating 21 U.S.C. § 841(a)(1); and was sentenced to 65 months' imprisonment, 3 years' supervised release, and forfeiture under 21 U.S.C. § 853 of the plane, a car, and some other items.
Critically for this appeal, neither Ryan nor his lawyers filed a timely notice of appeal from the conviction or sentence. Ryan's sentence therefore became final on March 26, 2009, when the 10-day deadline for appealing expired. On May 26, 2010, Ryan, now acting pro se, filed a motion to vacate under 28 U.S.C. § 2255, claiming in relevant part that counsel abandoned him on direct review by failing to file a notice of appeal, despite his instructions to do so. In his sworn motion and accompanying memorandum (also sworn), Ryan posed the allegation three times:
(1) "Counsel failed to file notice of appeal when requested he do so."
(2) "After sentencing, petitioner requested that defense counsel file an appeal. Defense counsel failed to file an appeal, and failed to advise petitioner of the 10 day time constraint."
(3) "Petitioner requested at the time of sentencing that his counsel file an appeal on his behalf, and was under the impression that this was being done. . . . Petitioner was under the impression that counsel was following his wishes. It was not until months later he discovered no notice had been filed."
Ryan swore that neither his lawyers nor the district court informed him of the 10-day deadline for appeals, and the sentencing transcript bears out his allegation about the district court's omission.
Anticipating an affirmative defense that his motion to vacate was untimely, Ryan contended that the statute of limitations did not start running under 28 U.S.C. § 2255(f)(4)-which governs the limitations period for claims arising from newly discovered facts-until at least May 26, 2009, one year before he filed his motion, because a reasonably diligent prisoner would not have known before then that counsel had failed to file an appeal. Alternatively, he argued that the limitations period did not start under § 2255(f)(2)-which governs the period for motions whose filing is impeded by the government-until June 4, 2009, when he arrived at the prison where he is currently housed; he alleged in support that he was "in transit" for the first three months of his confinement, and that prison officials did not grant him access to a law library or his own legal papers during that time. Finally, in the event that the limitations period started under § 2255(f)(1) when his conviction became final, Ryan asked the court to equitably toll the limitations period. On these timeliness issues and the substantive claim, Ryan sought discovery and a hearing.
The district court denied Ryan's motion without requesting a response from the government or further information from Ryan. The court concluded that the motion was untimely under § 2255(f)(1). The court rejected Ryan's argument for equitable tolling, explaining that even if his transit period kept him from filing a motion right away, a diligent prisoner would have done so in the nine months that followed. The court did not address Ryan's distinct argument that, under either sub-section (f)(2) or (f)(4), the one-year limitations period did not start running until less than one year before he filed his motion.
Ryan sought reconsideration, reiterating his argument under subsection (f)(4), but the district court denied the motion to reconsider and denied him a certificate of appealability. This court certified ...