United States District Court, E.D. Louisiana
ORDER AND REASONS
JANE TRICHE MILAZZO, District Judge.
Before the Court is Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (R. Doc. 50). For the following reasons, the Motion is DENIED, and Defendant's petition for post-conviction relief is DISMISSED WITH PREJUDICE.
On January 12, 2012, Defendant Cedric Kelly pleaded guilty pursuant to a plea agreement to one count of use of fire in order to collect money for an extension of credit through extortionate means and one count of knowingly and intentionally distributing 28 grams or more of cocaine base. This Court sentenced Defendant to 180 months in prison on June 12, 2012. Kelly did not file an appeal, and his sentence became final fourteen days later. Defendant's plea agreement included a waiver of his rights to bring any direct appeal or collateral attack of his sentence.
On December 19, 2014, Defendant, proceeding pro se, filed the instant Motion asking this Court to vacate his sentence in light of the ineffective assistance of counsel that he received. Specifically, Defendant claims that his appointed attorney, George Chaney, failed to file an appeal or consult with Defendant concerning an appeal. He alleges that Mr. Chaney falsely informed him that he could not file an appeal because he had not gone to trial and that Mr. Chaney failed to respond to the numerous messages that Defendant and his mother left at Mr. Chaney's office. The Government responded, arguing that Defendant's claim is time-barred.
28 U.S.C. § 2255(a) provides a prisoner with four grounds upon which he may seek relief from his sentence: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" or (4) that the sentence "is otherwise subject to collateral attack." Generally, a claim not raised on direct appeal may not be raised on collateral review "unless the petitioner shows cause and prejudice" or actual innocence. The Supreme Court has held, however, that "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought" in a § 2255 proceeding. A one-year period statute of limitation applies to § 2255 motions.
LAW AND ANALYSIS
The government argues that Defendant's claim should be dismissed as time-barred because it was brought outside of the one-year statute of limitations provided for in § 2255. Pursuant to § 2255, the one-year limitations period begins to run on the latest of several dates, including "(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;" or (3) "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." If Defendant's one-year period in which to file began running when his conviction became final on June 26, 2012, as the government argues, he would have had until June 26, 2013 to file his § 2255 motion. Because Defendant waited until December 19, 2014 to file the instant Motion, this Motion would be time-barred.
Defendant argues, however, that his claim is not time-barred because the statute of limitations began running from another date. First, he argues that his time to file did not begin to run until November 2014 when he discovered that it was not true, as his appointed counsel had told him, that he could not file an appeal because he had not gone to trial. Second, he argues that the collateral attack waiver in his plea agreement prevented him from bringing this action until the Attorney General issued a memorandum on October 14, 2014, instructing federal prosecutors to decline to enforce waivers of ineffectiveassistance-of-counsel claims in preexisting plea agreements. This Court will address each of Defendant's arguments in turn.
A. Date of Discovery
First, Defendant argues that the time in which he was required to file the instant Motion did not begin running until he spoke with a jailhouse attorney in November of 2014 and learned that he had a right to appeal. Defendant claims that his appointed counsel had told him that he did not have a right to appeal because he did not go to trial. Defendant claims that after learning that he was entitled to an appeal, he wrote to appointed counsel and requested a copy of his case file, which arrived on November 8, 2014. He then filed the instant motion on December 19, 2014, alleging the ineffective assistance of counsel for appointed counsel's failure to pursue an appeal or inform him that he had a right to appeal.
In short, Defendant's argument is that his conversation with a jailhouse lawyer in November of 2014 constitutes "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence, " and as such, is the time from which the statute of limitations should begin to run. "As the Supreme Court has explained, diligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize' that he should act."
This Court holds that Defendant was not diligent in discovering his claim. Specifically, Defendant has offered no explanation as to why he waited nearly two-and-a-half years to consult a jailhouse lawyer about his right to appeal. Defendant states that both he and his mother attempted to contact his appointed counsel on numerous occasions concerning the status of his appeal even after counsel had allegedly informed him that he had no right to such. First, this fact belies Defendant's allegation that he did not know he was entitled to an appeal. Second, appointed counsel's failure to respond to Defendant should have indicated to him that he should seek alternative assistance well before November 2014. Lastly, Defendant's affidavit supporting this Motion states that the Court informed him at sentencing that he had a right to appeal,  indicating that Defendant knew then that he was entitled to an appeal. Therefore, he should have been compelled at that time-rather than two years later-to investigate the ...