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Donald Thomas v. United States of America

October 3, 2012


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


Defendant Donald Thomas ("petitioner" or "Thomas") has filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the following reasons, that petition is denied.

On February 5, 2008, Thomas, along with 17 co-defendants, was charged with wire fraud, in violation of 18 U.S.C. § 1343, in connection with a $7.2 million mortgage fraud scheme. On March 12, 2009, a jury convicted Thomas on six counts of the indictment. On September 18, 2009, I sentenced Thomas to 53 months' imprisonment, followed by two years of supervised release, and ordered restitution in the amount of $597,100.00. Thomas filed a notice of appeal with the Seventh Circuit on September 18, 2009, but Thomas voluntarily dismissed his appeal on September 16, 2010. Thomas filed his § 2255 petition on July 27, 2012.


Motions under § 2255 are subject to a one-year statute of limitations, running from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) 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;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly 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.

Thomas was sentenced in 2009 and thereafter appealed his sentence. Thomas's motion to voluntarily dismiss his appeal was granted and the appeal dismissed on September 18, 2010, so his judgment of conviction became final "when the time for filing a certiorari petition expire[d]." Robinson v. United States, 416 F.3d 645, 647 (7th Cir. 2005) (quoting Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072 (2003)). The time for Thomas to file a certiorari petition expired ninety days after the Seventh Circuit dismissed his appeal, or on December 15, 2010. See Clay, 537 U.S. at 525, 123 S.Ct. 1072 (citing Sup. Ct. R. 13(1)). Therefore, under § 2255 Thomas had until December 15, 2011, to file his petition. However, he did not file that motion until July 27, 2012, almost 7 1/2 months after the deadline under § 2255 had expired.


Thomas argues that, although his motion is otherwise untimely, the deadline should be extended because he did not know that there was a statute of limitations for § 2255 motions and because of his vision problems. Section 2255's "period of limitation is not jurisdictional but is instead a procedural statute of limitations subject to equitable tolling." United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (citing Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999)). To qualify for equitable tolling, a petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807 (2005). In the § 2255 context, the Seventh Circuit has noted that "equitable tolling is granted sparingly" and that "the threshold necessary to trigger equitable tolling is very high." Marcello, 212 F.3d at 1010. Indeed, our court of appeals has noted that, given the express tolling provision incorporated into the statute "it is unclear what room remains for importing the judge-made doctrine of equitable tolling" into § 2255 claims. Montenegro v. United States, 248 F.3d 585, 594 (7th Cir. 2001), overruled on other grounds by Ashley v. United States, 266 F.3d 671 (7th Cir. 2001) (quoting Taliani, 189 F.3d at 598)).

Taking up the first requirement---that petitioner has been pursuing his rights diligently---I find that Thomas cannot establish diligence. Thomas contends that his attorney on appeal, Hannah Garst, provided him with transcripts from the trial and sentencing around the same time that he signed the letter consenting to the voluntary dismissal of his appeal, which was in early September 2010. (See Dkt. No. 6, at 23.) Thomas then states that when he finished going through the transcripts and highlighting the purportedly significant portions, he sent them back to Garst and requested her assistance in preparing a ยง 2255 motion. (Id. at 24.) In response, Thomas states that Garst returned the transcripts to him with a letter explaining that she did not practice in that area of law and could not help him. Thomas attached that letter to his present motion, and the letter is dated December 21, 2010. (See Dkt. No. 4-3, at 12.) According to Thomas, then, he had read and annotated the transcripts by December 21, 2010, and still had almost the full one-year limitations period in which to file ...

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