United States District Court, W.D. Louisiana, Lake Charles Division
E. WALTER, UNITED STATES DISTRICT JUDGE
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]. 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.
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
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.Istre contends that the Government
improperly provided this information to establish a pattern
of criminal behavior without investigating the facts. See
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].
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).
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.
“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].
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
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).
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 ...