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Hall v. United States

United States District Court, S.D. Illinois

March 22, 2017

NICHOLAS MATTHEW HALL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ON JOHNSON-BASED PETITION TO VACATE/CORRECT SENTENCE UNDER 28 U.S.C. 2255

          Michael J. Reagan United States District Judge.

         A. Introduction

         In Case No. 10-cr-30019-MJR (“the underlying case”), Nicholas Matthew Hall and co-Defendant Jonathan Bohn were indicted on two charges of bank robbery in violation of 18 U.S.C. 2113 (Count 1 and 2) and one charge of carrying and using a firearm during a crime of violence in violation of 18 U.S.C. 924(c) (Count 3). All three counts alleged that Hall aided and abetted Bohn in the commission of the crimes.

         In October 2010, Hall pled guilty to the charges, via a written plea agreement and stipulation of facts. In January 2011, the undersigned sentenced Hall to 70 months in prison on Counts 1 and 2 (running concurrently with each other) plus 84 months in prison on Count 3 (running consecutively to the 70-month term). This resulted in a total term of imprisonment of 154 months, and was followed by a 5-year term of supervised release. Judgment was entered February 7, 2011.

         No appeal was taken. On July 18, 2016, Hall filed a petition to vacate, set aside, or correct his sentence under 28 U.S.C. 2255, which was opened as the above-captioned civil case. The petition is based on Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), which found unconstitutional the residual clause of the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(ii), and Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016), which held Johnson retroactively applicable to cases on collateral review.

         On threshold review under Rule 4 of the Rules Governing Section 2255 Proceedings, the undersigned did not summarily dismiss the petition. The Court ordered briefing but noted two potential obstacles to relief - (1) Hall's petition may have been filed outside of the limitation period set in 28 U.S.C. 2255(f); and (2) Hall's petition may be barred by a waiver provision contained in the plea agreement. The undersigned directed the parties to address these issues in their briefs, i.e., the timeliness of Hall's petition, the effect of the waiver provision, and whether Hall has a viable Johnson-based claim for relief.

         Pursuant to Administrative Order 176, the Court appointed the Federal Public Defender's Office for the Southern District of Illinois to assist Hall in presenting any valid Johnson-based argument. Assistant Federal Public Defender Daniel G. Cronin entered his appearance on Hall's behalf, and briefs were filed as follows: Mr. Cronin's brief on behalf of Petitioner Hall (Doc. 5), a permitted pro se supplement filed by Petitioner Hall in letter form (Doc. 6), the United States' response (Doc. 8), and a reply brief by Mr. Cronin on Hall's behalf (Doc. 9). The matter was fully ripe on November 14, 2016. For the reasons stated below, the Court denies the petition.

         B. Evidentiary Hearing

         Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, this Court must determine whether an evidentiary hearing is warranted. Not every petition warrants a hearing. Boulb v. United States, 818 F.3d 334, 339 (7th Cir. 2016). See also Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (“It is well-established that a district court need not grant an evidentiary hearing in all § 2255 cases, ” such as where the record conclusively shows the prisoner is not entitled to relief.); Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (to justify a hearing, petition must be accompanied by a detailed affidavit which shows that the petitioner has actual proof of the allegations going beyond mere unsupported assertions). The record before this Court conclusively reveals that Hall is not entitled to relief, so no hearing is needed.

         C. Timeliness of Petition

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year period of limitations for prisoners to file petitions seeking to modify or vacate their sentences under 28 U.S.C. 2255. Usually the period runs from the date on which the judgment of conviction became final. 28 U.S.C. 2255(f); Clay v. United States, 537 U.S. 522, 524 (2003).

         The one-year limitation period is triggered by the latest of four events:

(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(f).

         The statute does not provide for extensions of time. However, the limitation period is procedural not jurisdictional, and it can be equitably tolled. Boulb, 818 F.3d at 339, citing Holland v. Florida, 560 U.S. 631, 645, 649 (2010).

         Hall's judgment in the underlying case was entered on February 7, 2011. The petition obviously was not filed within one year of his judgment of conviction becoming final. But Hall invoked Johnson, and he had had one year from the date that decision was announced (June 26, 2015) to file his petition, since § 2255(f)(3) “allows a fresh year from ‘the date on which the right asserted was initially recognized by the Supreme Court, if that right has been … made retroactively applicable to cases on collateral review.'” Stanley v. United States, 827 F.3d 562, 564 (7th Cir. 2016), quoting 28 U.S.C. 2255(f)(3).

         Hall's § 2255 petition was received in the Clerk's Office on July 18, 2016. As suggested in the threshold review Order, the Court applies the “prison mailbox rule, ”[1] using the date Hall gave his petition to prison authorities as opposed to the date is was received by the clerk's office. See Rule 3(d) of Rules Governing Section 2255 Proceedings; Boulb, 818 F.3d at 338, n.3.

         The certificate of service on Hall's petition attests that he placed the petition in the prison mailing system on July 13, 2016. That date, too, is outside the fresh one-year period triggered by Johnson, which ended on June 26, 2016. So the petition is time-barred unless saved by the doctrine of equitable tolling.

         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 and prevented timely filing.” Boulb, 818 F.3d at 339-40, quoting Holland, 560 U.S. at 649.As noted above, equitable tolling is rarely applied; it is reserved for extraordinary circumstances “far beyond the litigant's control that prevented timely filing.” Boulb, 818 F.3d at 340, quoting Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014).

         In Boulb, 818 F.3d at 340-41, the Court rejected the argument that equitable tolling applied where the petitioner's mental deficiencies may have affected his ability to comply with the filing deadline. Likewise, in Nolan v. United States, 358 F.3d 480, 486 (7th Cir. 2004), the Seventh Circuit declined to apply equitable tolling.

         The Court in Nolan clarified that equitable tolling does apply to § 2255 petitions but found the petitioner not entitled to application of the doctrine, because the reasons offered for his late filing fell “far short of what is needed to justify tolling the statute of limitations … [and were] not the kind of case-specific, unanticipated circumstances we have required.” Indeed, the Court remarked: “Equitable tolling of the statute of limitations is such exceptional relief that ‘we have yet to identify a circumstance that justifies equitable tolling in the collateral relief context'” such as a § 2255 petition. Nolan, 358 F.3d at 484, quoting Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003). Similarly, in Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008), in the context of a § 2254 habeas petition, the Seventh Circuit declared as to equitable tolling being applied on collateral review: “Indeed, we have yet to identify a petitioner whose circumstances warrant it.”

         Nolan was a 2004 decision. Kingston came four years later. Two 2014 Seventh Circuit cases shed light on what might warrant equitably tolling the statute of limitations for a habeas petition. In Davis v. Humphreys, 747 F.3d 497, 500 (7th Cir. 2014), the Court held that mental incompetence could, on the right set of facts, satisfy the equitable tolling doctrine.[2] In Socha, the Court emphasized that each of several facts standing alone - e.g., a prisoner's incarceration, his placement in administrative segregation, his lack of legal training, his lack of representation - did not justify equitable tolling, but a combination of such factors might piece together to form a whole that did support application of the doctrine. “The mistake made by the district court … was to conceive of the equitable tolling inquiry as the search for a single trump card, rather than an evaluation of the entire hand that the petitioner was dealt.” Socha, 763 F.3d at 686. The lesson of Socha is that in assessing equitable tolling, the district court must use a flexible, fact-specific standard that encompasses all of the petitioner's circumstances and the cumulative effect they had on his ability to timely file. Id.

         Five months ago, in the analogous context of a § 2254 petition, the Seventh Circuit summarized:

Although not a “chimera-something that exists only in the imagination, ” Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014), equitable tolling is an extraordinary remedy that is “rarely granted.”Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013)…. A habeas petitioner is entitled to equitable tolling only if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649….
The habeas petitioner bears the burden of demonstrating both elements of theHollandtest.Williams v. Buss, 538 F.3d 683, 685 (7th Cir. 2008). If the petitioner cannot demonstrate either of the two elements, then equitable tolling will not be applied. Menominee Indian Tribe of Wisconsin v. United States, ___ U.S. ___, 136 S.Ct. 750, 755-56 … (2016);Lawrence v. Florida, 549 U.S. 327, 336-37 … (2007) (rejecting equitable tolling without addressing diligent pursuit because the petitioner clearly could not demonstrate extraordinary circumstances).

Carpenter v. Douma, 840 F.3d 867, 870 (7th Cir. 2016).

         The diligence prong requires the petitioner to demonstrate that he was reasonably diligent in pursuing his rights “throughout the limitations period and until he finally filed his untimely habeas petition….” Id.And the extraordinary circumstances prong requires the petitioner to show that the circumstances that caused his delay (preventing the timely filing) were “both extraordinary and beyond [his] control.” Carpenter, 840 F.3d at 872, quoting Menominee Indian, 136 S.Ct. at 756.

         Ultimately, the Court in Carpenter held the petitioner not entitled to equitable tolling of the limitations period. Id. The Seventh Circuit found the petitioner did not exercise reasonable diligence in filing his petition. The Court also concluded that the combination of circumstances cited by the petitioner (lack of legal training, lack of appointed counsel during portions of his appeal process, physical and mental health issues, removal from his correctional facility to address health problems, inability to obtain a loan, and conflicts with appointed counsel during his appeal) were “nothing but ordinary” and did not justify tolling the statute of limitations. Carpenter, 840 F.3d at 872-73.

         The undersigned reaches the same conclusion as to Hall's petition. The dual reasons offered in defense of Hall's untimely filing (submitted via pro se letter which the undersigned permitted as a supplement to the petition) are (1) he was in administrative segregation unable to get into his property and “mail the paperwork … until the date had passed, ” and (2) his lack of understanding of the holding of Johnson - “If I would have known ...


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