United States District Court, N.D. Illinois
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, District Judge.
Petitioner Marcus Corson ("Corson") was convicted by a federal jury in August 2007 for conspiring with three other men to rob a drug stash house and sell the proceeds of the robbery. He was later sentenced to 135 months on each count to run concurrently. Corson has moved to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. He presents two grounds for relief: (1) ineffective assistance of counsel for failure to seek a severance; and (2) ineffective assistance of counsel for failure to pursue a claim of actual innocence. Neither of these arguments is facially compelling. A severance motion had no chance of success; Petitioner and his two co-Defendants were charged in one indictment because all three were involved in the same planned robbery, and there were no genuinely antagonistic defenses. And defense counsel did indeed argue that Petitioner was innocent of the charged offense. See, e.g., Defendant Marcus Corson's Motion for Judgment of Acquittal,  in United States v. Corson , No. 06 CR 930. The government argues for dismissal of this petition, however, not on its merits but on timeliness grounds. Petitioner acknowledges that he filed this motion  after the filing period had lapsed, and, as such, it is technically time-barred. He contends, however, that extraordinary circumstances here support the equitable tolling of the limitations period. For the reasons explained here, the court declines to apply equitable tolling and denies Corson's § 2255 motion as untimely.
On January 10, 2007, Movant Marcus Corson was indicted on two counts of conspiracy: (1) conspiracy to possess with intent to distribute five or more kilograms of cocaine; and (2) conspiracy to obstruct, delay, or affect commerce by means of robbery. 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 1951. But, as the Seventh Circuit put it, "there's a twist": the plot was part of a government sting operation. United States v. Corson, 579 F.3d 804, 806 (7th Cir. 2009). In reality, two of Corson's purported co-conspirators were working for the government (one as a confidential informant, the other a federal agent), and neither the stash house that Corson conspired to rob nor the drugs that were supposedly inside it were real. Following a four-day trial, a jury convicted Corson on both counts on August 23, 2007, and he was subsequently sentenced by this court to 135 months on each count to run concurrently. United States v. Corson , No. 06 CR 930 (N.D. Ill. Aug. 23, 2007). Corson appealed, but the Seventh Circuit affirmed his conviction on August 27, 2009. Corson, 579 F.3d 804. On March 8, 2010, the Supreme Court denied Corson's petition for writ of certiorari.
Approximately three weeks later, on April 1, 2010, Heather Winslow (Corson's attorney throughout his trial and direct appeals) informed him by letter that his certiorari petition had been denied. (Letter from Winslow to Corson of 4/1/2010, Ex. A to Corson's Mem. in Support of Equitable Tolling, hereinafter "Movant's Mem.") In that correspondence, Winslow also counseled Corson that "[t]he only thing left to do at this point is to consider whether you want to file a 2255 petition. You have only one year to do that." ( Id. ) Although that letter is dated April 1, Winslow did not specify when exactly the one-year limitations period began to run, nor did she mention that the Supreme Court had issued its decision on March 8.
In the months that followed, Winslow and Corson remained in contact; but Movant's incarceration strained his available lines of communication. As a result, Corson's mother (Kathy Corson) and girlfriend (Dana Schroeder) often served as conduits between Corson and his attorney. ( Id. ) The two women wrote numerous e-mails to Winslow from June 2010 through March 2011. ( See Exs. D-K to Movant's Mem.) They also met with Winslow in person in July 2010 to discuss Movant's 2255 motion. At that meeting, Winslow learned that Corson planned to base his § 2255 motion on claims that Winslow's representation was constitutionally ineffective. Because of these claims, Winslow determined that she could no longer represent Corson in his collateral proceedings. ( Id. ) She nonetheless agreed to assist Corson in obtaining representation from another attorney, Matthew Madden, a former colleague of hers when both were employed at the Federal Defender's office. ( Id. ) Corson offers no explanation of what happened with Madden, but the e-mail correspondence between Winslow, Ms. Corson, and Schroeder shows that Madden did not take Corson's case on: on March 17, 2011, Schroeder wrote to Winslow, "Since we have not heard anything from Matt on taking Marc's case and time is running out Marc is left with asking for a public defender." (E-mail from Schroeder to Winslow of 3/17/2011, Ex. I to Movant's Mem.) Corson remained unrepresented in this collateral proceeding until months after filing this motion.
Even after identifying the conflict of interest and telling Corson that she wouldn't participate in the preparation of his § 2255, Winslow continued to correspond with Movant's go-betweens through at least March 23, 2011. ( See E-mail from Winslow to Kathy Corson of 3/23/11, Ex. K to Movant's Mem.) Ms. Corson or Schroeder initiated each e-mail exchange throughout this period, seeking Winslow's advice about either reaching Madden or preparing and filing Movant's 2255 motion. ( See Exs. D-K to Movant's Mem.) Corson claims that by continuing to advise him through his surrogates, Winslow "lull[ed] him into a false sense of security." (Movant's Reply  at 2.) Specifically, he "believed that either [Winslow] would continue to represent him or ensure that someone else from the Federal Defender's Office would represent him on his 2255 motion" until just before he hastily filed his petition in March 2011. (Movant's Mem. at 2.) In December 2010, however, Movant's mother e-mailed Winslow indicating that her son was planning to file his motion pro se. She wrote Winslow on December 16, asking the attorney to call her because she was "having a little bit of a problem starting the 2255." (E-mail from Kathy Corson to Winslow of 12/16/2010, Ex. F to Movant's Mem.)
At no point in any of her communications with Corson or his family did Winslow identify the precise deadline for Movant's 2255 motion. Corson assumed, however, that he had until April 1, 2011-one year to the day after Winslow's letter informed him of the 365-day limitations period. (Movant's Mem. at 2.) And, although Winslow never mentioned a specific date, her own conduct suggests that she too may have misunderstood the limitations period. In e-mails sent after March 8, 2011, Winslow referred to the 2255 deadline in the future tense when, in reality, the one-year period had already lapsed. For instance, on March 23, Winslow warned Ms. Corson that her son was "really short on time" to file his 2255 motion. ( See e.g., E-mail from Winslow to Schroeder of 3/23/2011, Ex. K to Movant's Mem.) Movant eventually filed his 2255 motion pro se on March 30, 2011,  two days before what he believed to be the statutory deadline for doing so.
Several months later, in August 2011, this court appointed counsel to represent Corson (Movant's Mem. at 2), and exactly one year after filing his 2255 petition, Corson filed, through counsel, a separate motion  asking the court to equitably toll the limitations period based on Winslow's conduct. The government responded , addressing only the tolling issue and asking the court to dismiss Corson's motion as untimely.
I. Limitations Period of Section 2255(f)
A one-year period of limitation applies to motions made pursuant to 28 U.S.C. § 2255, starting on one of four dates. 28 U.S.C. § 2255(f). In this case, the parties agree, Corson was required to file no later than one year after March 8, 2010, the date when the Supreme Court denied Corson's petition for certiorari. (Movant's Mem. at 3; Gov't's Resp.  at 4 (citing Robinson v. United States, 416 F.3d 645, 646 (7th Cir. 2005) ("finality attaches for purposes of the one-year limitations period of § 2255[(f)(1)] when the Supreme Court affirms on the merits on direct review or denies certiorari[.]")).) The parties further agree that Corson filed his motion more than one year later, on March 30, 2011; and, as such, it is untimely. (Movant's Mem. at 3.)
II. Equitable Tolling
Despite missing this statutory deadline, Corson suggests that, because he was "effectively abandoned" by his attorney, the court should reach the merits of his motion by deeming it timely under the doctrine of equitable tolling. ( Id. ) The government disagrees, arguing that the circumstances Corson alleges do ...