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United States v. Istre

United States District Court, W.D. Louisiana, Lake Charles Division

May 8, 2019

UNITED STATES OF AMERICA
v.
ELIZABETH ISTRE

          KAY, MAGISTRATE JUDGE

          MEMORANDUM RULING

          DONALD E. WALTER, UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed by the Petitioner, Elizabeth Istre (“Istre”). [Rec. Doc. 111]. In response, the Government filed a Motion to Dismiss the matter pursuant to Federal Rule of Civil Procedure 12(b)(6). [Rec. Doc. 116].[1] Istre opposes the Government’s motion. [Rec. Doc. 121]. For the reasons assigned herein, the Government’s Motion to Dismiss is hereby GRANTED. Istre’s Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DISMISSED WITH PREJUDICE.

         BACKGROUND INFORMATION

         On May 4, 2017, a jury found Istre guilty of committing three counts of wire fraud in violation of 18 U.S.C. § 1343. [Rec. Doc. 91]. While employed by L.M. Daigle Oil Distributers, Istre wrote hundreds of unauthorized checks to herself from her employer’s account, totaling $4,348,490.18. [Rec. Doc. 105 at ¶ 11]. On September 26, 2017, the Court imposed a sentence of 87 months imprisonment. [Rec. Doc. 106, 107]. Istre did not file a direct appeal of her conviction or sentence.

         On October 23, 2018, Istre filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. [Rec. Doc. 111]. Therein, Istre alleges that her sentence is unconstitutional based on misconduct by the Government. See id. Specifically, Istre argues that the Government supplied incorrect information to the probation office which suggested that she had been terminated by another former employer, BFI, for theft of company funds See id. at 4.[2]Istre contends that the Government improperly provided this information to establish a pattern of criminal behavior without investigating the facts. See id.

         Istre also claims that her trial attorney, Todd Clemons (“Clemons”), failed to provide effective assistance of counsel. See id. Istre claims that Clemons failed to object to the inclusion of the information regarding her termination from BFI in the probation report. See Id. She also alleges that Clemons was not adequately prepared to properly defend her at trial. See id. In response, the Government filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the statute of limitations has run, and Istre’s motion is time-barred. [Rec. Doc. 116 at 5].

         LAW AND ANALYSIS

         The Antiterrorism and Effective Death Penalty Act of 1996 as set forth in 28 U.S.C. § 2255 provides a one-year statute of limitations during which a federal prisoner may file a motion to vacate, set aside, or correct her sentence. See Dodd v. United States, 545 U.S. 353, 356, 125 S.Ct. 2478, 2481 (2005). The statute of limitations begins to run “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(f).

         Because Istre did not file a direct appeal of her sentence and conviction, the one-year period to file a motion under section 2255(f)(1) began to run upon the expiration of the 14-day period for the filing of a direct appeal. See United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008). The judgment of conviction against Istre was signed and entered on September 26, 2017. [Rec. Doc. 107]. Istre’s time to file a notice of direct appeal expired fourteen days later, on October 10, 2017. See Fed. R. App. P. 4(b). Thus, per section 2255(f)(1), the one-year period for Istre to file her motion ended a year later, on October 10, 2018.

         The “prison mailbox rule” provides that a pleading is to be considered filed the date it is placed in the prison’s mailbox system. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385 (1988); Spotville v. Cain, 149 F.3d 374, 376 (5th Cir. 1998). For a filing to be timely, it must be deposited into the prison’s internal mailing system for delivery to the Court on or before the last day for filing. See Spotville, 149 F.3d at 376; Rule 3(d) of the Rules Governing Section 2255 Proceedings. Istre signed her section 2255 motion on October 17, 2018. [Rec. Doc. 111 at 15]. The envelope mailed to the Court indicates that Istre placed her motion in the prison mail system on October 18, 2018. [Rec. Doc. 111-2].

         Istre’s motion is untimely under section 2255(f)(1) because she mailed her petition more than one year after the judgment against her became final. Further, there is nothing in the record to suggest that a governmental impediment prevented her from filing a motion under section 2255(f)(2). Likewise, there is no new constitutional right made retroactively applicable to her conviction pursuant to section 2255(f)(3). Istre admits that her motion was filed more than a year after her conviction became final, but argues that her motion is timely pursuant to section 2255(f)(4) because it has been less than one year since she became aware that her trial counsel’s performance was ineffective, and she discovered additional evidence supporting her motion. [Rec. Doc. 111 at 14]. Istre contends that she had no idea what a section 2255 motion was, much less the grounds to file such a motion, until she was settled into prison life and heard about it from other prisoners. [Rec. Doc. 121 at 2]. Istre argues that her fatigued mental state after her trial and her lack of access to information should delay the running of the statute of limitations under 2255(f)(4). [Rec. Doc. 111 at 14].

         Section 2255(f)(4) provides a later date for the running of the statute of limitations period, beginning with “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)(4). To apply, the defendant’s “diligence must merely be due or reasonable under the circumstances.” Starns v. Andrews, 524 F.3d 612, 619 (5th Cir. 2008). Diligence is shown through “prompt action” by the defendant as soon as she “is in the position to realize” that she should act. Johnson v. United States, 544 U.S. 295, 308, 125 S.Ct. 1571 (2005). In applying section 2255(f)(4), “the important thing is to identify a particular time when diligence is in order.” United States v. Jackson, 470 F. App’x 324, 327 (5th Cir. 2012) (citing Johnson, 544 U.S. at 308).

         Istre’s assertion that her sentence should be set aside due to alleged governmental misconduct regarding her termination from BFI is time-barred, even under section 2255(f)(4). The circumstances surrounding her termination were first presented in a presentence probation report dated June 7, 2017. [Rec. Doc. 105 at ¶ 50]. Her counsel, Clemons, raised an objection on her behalf, denying that Istre was terminated by BFI due to theft. [Rec. Doc. 105 at 21]. Clemons argued that a fair reading of prior deposition testimony provided by Istre’s husband indicated that she was terminated due to a pay dispute involving her husband. See id. Clemons also argued that there was never an allegation that BFI declined to pursue criminal against Istre because restitution was paid. See id. In response, on July 14, 2017, the probation office revised the presentence report to reflect that Istre’s husband also testified that she was terminated for incorrectly submitting tickets for work completed by her husband. [Rec. Doc. 105 at ¶ 50]. The presentence report also reflects that Istre’s husband testified that he and his wife paid back approximately $10,000 to the employer. See id. Istre argues that there was no evidence to suggest that she stole from BFI. [Rec. Doc. 111 at 4]. She also states that the restitution ...


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