Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Sanchez

United States District Court, N.D. Illinois, Western Division

January 25, 2017

United States of America, Plaintiff,
v.
Francis X. Sanchez, Defendant.

          ORDER

          Philip G. Reinhard Judge

         For the following reasons, defendant's 28 U.S.C. § 2255 motion to reduce his sentence [1] is dismissed/denied. The court declines to issue a certificate of appealability. The matter is terminated.

         STATEMENT - OPINION

         This matter pertains to the 28 U.S.C. § 2255 motion defendant Francis X. Sanchez filed in this court [1], challenging his 2012 criminal conviction in this court for wire fraud. Defendant argues that his trial counsel was ineffective in various respects. The government responds that defendant's motion should be dismissed as untimely. The government further responds that defendant's motion fails on the merits because counsel was not deficient and defendant was not prejudiced from counsel's actions.

         A. Timeliness of the § 2255 Motion.

         As an initial matter, the government argues that defendant's § 2255 motion was untimely because it was received and filed on July 1, 2015, one day after the June 30, 2015 statute of limitations had expired in this matter. Both parties agree that the motion was filed one day late. Ordinarily, the prison mailbox rule would apply, such that the date of filing would be considered the date that the defendant placed his motion in the prison mailbox system. Here, however, defendant elected to have his motion filed by private counsel. Counsel submitted the motion by delivering via Federal Express overnight delivery on June 29, 2015. The motion was guaranteed to arrive by June 30th, but was delayed by one day to July 1st “due to tornadic activity and thunderstorms that grounded all flights in the Midwest.” See [15] at 2.

         The Seventh Circuit has held that AEDPA's one-year statute of limitations can be equitably tolled only if a petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013) (quoting Holland v. Florida, 560 U.S. 631 (2010)). The defendant bears the burden of showing that equitable tolling is warranted. Id. at 748. “The realm of equitable tolling is a highly fact-dependent area in which courts are expected to employ flexible standards on a case-by-case basis. That said, tolling is rare; it is reserved for extraordinary circumstances far beyond the litigant's control that prevented timely filing.” Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014). Notably, “the Supreme Court has made clear that a ‘garden variety claim of attorney negligence' or ‘excusable neglect' is insufficient” to show an extraordinary circumstance warranting equitable tolling. Id. at 749. “The rationale is that attorney negligence is not extraordinary and clients, even if incarcerated, must ‘vigilantly oversee, ' and ultimately bear responsibility for, their attorneys' actions or failures.” Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003). The Seventh Circuit has also found that attorney incapacity does not constitute an extraordinary circumstance. See id.

         With regard to the first prong, defendant argues that he has been pursuing his rights diligently, and that his inability to complete the instant motion earlier was due to a breakdown in communication with his trial counsel and inability to obtain required information. With regard to the second prong, defendant contends that his delay was created by “An Act of God, ” which he argues “can be considered an extraordinary circumstance.” See [15] at 2. The government disagrees, arguing that weather delays are foreseeable and should not constitute an extraordinary circumstance. Both parties cite Johnson v. McBride, 381 F.3d 587 (7th Cir. 2004), in which the petitioner's § 2254 petition was deemed untimely despite the fact that counsel mailed the petition one day prior to expiration of the statute of limitations. The court noted that the deadline had been missed because:

Counsel bungled the job in two ways. First, she waited until the final business day of the statutory year. Prudent lawyers act sooner, so that Murphy's Law will not undermine a client's interests. Second, counsel used first-class mail rather than Federal Express or another service that guarantees next-business-day delivery, or (better still) sending a messenger to the courthouse to file in person.

Id. at 589. It was uncontested that counsel had erroneously believed that mailing the petition would toll the statute of limitations by three days. The petitioner argued that equitable tolling should apply, because the delay was the fault of his attorney. The Seventh Circuit declined, holding that “we hold the prisoner responsible for his attorney's bungling.” Id. at 590 (quoting Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003)).

         Defendant argues that Johnson stands for the proposition that equitable tolling should apply if an attorney mails a habeas motion on the eve of the statutory period and uses Federal Express next-business-day delivery. The government argues that Johnson stands for the proposition that mailing on the eve of the statutory deadline is itself so risky that the extraordinary circumstances prong should not be met, regardless of what means the attorney uses to mail the motion.

         Despite the parties' contention, a strict reading of Johnson reveals that the court's holding was restricted to the well-settled proposition that attorney negligence is not a grounds for equitable tolling. In Johnson, it was not contested that the attorney had made an error by using first class delivery on the eve of the statutory deadline, believing that the statute of limitations would be tolled three days. The court's discussion as to what exactly constituted the attorney's “bungling” was thus dicta. Nevertheless, given the lack of equitable tolling caselaw directly on point with the instant case, the Johnson court's explication that mailing on the eve of the statutory deadline is itself an imprudent act, given the possible application of “Murphy's Law, ” suggests that the extraordinary circumstance prong of the equitable tolling standard should not ordinarily apply in such a case. This is bolstered by the Seventh Circuit's repeated warning that equitable tolling “is reserved for extraordinary circumstances far beyond the litigant's control that prevented timely filing.” See Socha, 763 F.3d at 684. True, any individual weather event may be “far beyond” a litigant's control. However, weather-related mailing delays, particularly those delaying mail delivery by one day, are not extraordinary. A prudent litigant intending to mail a filing will ordinarily do with a multi-day buffer, thus ensuring that weather conditions or other delays will not prevent timely filing except in truly extraordinary circumstances.

         For the foregoing reasons, the court agrees with the government that defendant has not shown that extraordinary circumstances exist. As such, equitable tolling does not apply and defendant's untimely motion is subject to dismissal on those grounds alone. Nevertheless, in an abundance of caution, the court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.