USA v. Powell

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THE UNITED STATES OF AMERICA,
Plaintiff,
v.
STEVEN BRADLEY POWELL,
Defendant.
Case No. 3:14-cr-00112-TMB
ORDER ON MOTION TO DENY
(DKT. 132)
I. 	INTRODUCTION
The matter comes before the Court on the United States’ Motion for Order Denying as
Untimely the Motion Under 28 U.S.C. § 2255, or, Alternatively, Allowing the Government Leave
to Respond to Substance of Motion ( “Motion to Deny”).1 In the Motion to Deny, the Government
argues that Defendant Steven Bradley Powell’s Motion Under 18 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”)2 was filed after the
one-year statute of limitations period for such motions expired.3 Defendant did not file a response
to the Motion to Deny and neither Party has requested a hearing.4 Therefore, the matter is ripe for
resolution and for the reasons discussed below, the Motion to Deny is GRANTED. Accordingly,
Defendant’s § 2255 Motion is DENIED.
1 Dkt. 132 (Motion).
2 Dkt. 100 (Motion).
3 Dkt. 132 at 3.
4 Defendant, through counsel, preemptively addressed the timeliness issue raised by the Motion to
Deny in an amended § 2255 motion. Dkt. 127.
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II. 	BACKGROUND
On June 29, 2015, Defendant pleaded guilty to one count of Conspiracy to Distribute and
Possess with Intent to Distribute Controlled substances, in violation of 21 U.S.C. § 846, 841(a)(1)
and (b)(1)(A), and one count of Money Laundering Conspiracy, in violation of 18 U.S.C.
§ 1956(h).5 On January 5, 2018, the Court sentenced Defendant to 90 months of imprisonment on
both counts, to be served concurrently, 25 years of supervised release on Count 1 and 3 years of
supervised release on Count 2, to be served concurrently, and a $200 mandatory special
assessment, and ordered Defendant forfeit his interest in the property to the United States as
directed.6 The written judgment was entered on January 10, 2018.7 Defendant did not file a direct
appeal of his conviction or sentence.
Defendant, appearing pro se, constructively filed the § 2255 Motion, together with a
Motion for Appointment of Counsel and CJA 23 Financial Affidavit, on June 10, 2019.8 The Court
granted the Motion for Appointment of Counsel and counsel subsequently filed Notice of
Appearance.9 However, the Court later allowed counsel to withdraw and appointed new counsel.10
5 Dkts. 31 (Minute Entry); 2 (Indictment).
6 Dkt. 89 (Minute Entry).
7 Dkt. 91 (Judgment).
8 Dkts. 100; 101 (Motion); 102 (Financial Affidavit). Although the Court received the filings on
June 12, 2019, Defendant signed and dated the § 2255 Motion “6-10-2019.” Dkt. 100 at 13. Under
Rule 3(d) of the Rules Governing Section 2255 Proceedings, an inmate filing is considered “filed”
the date it is deposited with the institution’s internal mailing system. Accordingly, the § 2255
Motion is deemed filed as of June 10, 2019. See also Houston v. Lack, 487 U.S. 266, 270 (1988)
(establishing the “mailbox rule”).
9 Dkts 103 (Order); 104 (Notice of Attorney Appearance).
10 Dkts. 110 (Minute Entry); 112 (Notice of Attorney Appearance).
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On January 2, 2020, Defendant, through counsel, filed an Amended 28 U.S.C. § 2255
Motion to Vacate, Set Aside, or Correct Sentence and Memorandum of Law in Support (together,
“Amended § 2255 Motion”).11 As a preliminary matter, Defendant concedes that his original
§ 2255 Motion was filed outside the statute of limitations but argues that equitable tolling applies
in his case.12 Defendant further acknowledges that the Court must first find that equitable tolling
renders the § 2255 Motion timely before considering the merits of his grounds for relief.13 As for
the merits, Defendant raises two grounds for relief in the Amended § 2255 Motion. First,
Defendant asserts an ineffective assistance of counsel claim because his trial counsel failed to
consult with him regarding the filing of a notice of appeal and other post-conviction relief.14
Second, Defendant argues that he was prejudiced by the Presentence Report’s inclusion of an arrest
for a sex offense that was not prosecuted.15
On February 27, 2020, the Government filed the Motion to Deny, which argues the
Defendant fails to show he qualifies for equitable tolling.16 Specifically, the Government contests
that Defendant can meet either of the two elements for equitable tolling: (1) that he has been
pursuing his rights diligently and (2) that he was prevented from filing by an extraordinary
circumstance.17
11 Dkts. 127 (Motion); 131 (Memorandum).
12 Dkt. 131 at 5‒8.
13 Id. at 3.
14 Dkt. 127 at 3‒4.
15 Id. at 4‒5;
16 Dkt. 132.
17 Id. at 5‒6.
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The time to oppose the Motion to Deny has passed. As of the date of this Order, Defendant
has not filed a response to the Motion to Deny or otherwise communicated with the Court regarding
his case.
III. 	LEGAL STANDARD
A one-year statute of limitations applies to § 2255 motions.18 The limitations period begins
running from 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.19
Accordingly, any § 2255 motion filed outside the limitations period is untimely unless the movant
can show that equitable tolling applies.20
In turn, “the threshold to trigger equitable tolling is very high, lest the exceptions swallow
the rule.”21 A movant 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.”22 The first element requires the movant demonstrate “reasonably diligence, not
18 28 U.S.C. § 2255(f).
19 Id.
20 United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004) (holding that the equitable tolling
doctrine applies both § 2254 and § 2255).
21 Miranda v. Castro, 292 F.3d 1064, 1066 (9th Cir. 2002).
22 Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)).
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maximum feasible diligence.”23 The second element—“extraordinary circumstance”—presents a
higher standard. The movant must assert that “extraordinary circumstances beyond a prisoner’s
control ma[de] it impossible to file a petition on time.”24 That is, the movant must show that the
“extraordinary circumstances were the cause of his untimeliness.”25
IV. 	ANALYSIS
In this case, the Parties agree that the statute of limitations under § 2255(f)(1) applies and
the one-year limitations period for Defendant’s § 2255 motion began running on January 25, 2018,
the date his time to appeal expired and the judgment of conviction became final.26 Therefore,
Defendant had until January 25, 2019, to file the § 2255 Motion. However, Defendant filed the
§ 2255 Motion on June 10, 2019, nearly six months after the limitations period expired. Therefore,
the § 2255 Motion is untimely unless Defendant can demonstrate that equitable tolling applies in
his case.
A. 	Reasonable Diligence
Defendant has failed to make the requisite showing of reasonable diligence to toll the
statute of limitations. Defendant argues that he was diligent in filing the § 2255 Motion upon
learning of the statute of limitations.27 However, Defendant also concedes that he “did not seek
legal advise [sic] until after the expiration of the time period to file a § 2255 motion.”28 Defendant
23 Holland, 560 U.S. at 653 (internal quotations and citations omitted).
24 Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir. 2003) (quoting Brambles v. Duncan, 330 F.3d
1197, 1202 (9th Cir. 2003)).
25 Spitsyn, 345 F.3d at 800 (quoting Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003)).
26 See Dkts. 131 at 4; 132 at 3.
27 Dkt. 131 at 5.
28 Id.
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states in his declaration, “I was not aware of the timing deadline until I called the Federal
Defender’s Office and spoke with Dan Poulson in Late May 2019.”29 Defendant does not aver that
he made any attempts to contact his trial attorney following his January 2018 sentencing or that he
attempted to research the filing requirements for a § 2255 motion between January 2018 and
January 2019, the duration of the limitations period. Defendant fails to allege he attempted even
the barest acts of diligence during the limitations period. Therefore, Defendant has failed to show
the reasonable diligence required to justify equitable tolling.
B. 	Extraordinary Circumstances
Even assuming Defendant satisfies the diligence prong, Defendant fails to show that
extraordinary circumstances caused his untimeliness. Defendant argues that because his trial
attorney failed to advise him about the timing to file an appeal and § 2255 motion, counsel’s failure
constitutes extraordinary circumstances to warrant equitable tolling.30
“[A]ttorney conduct compromising the filing of a timely federal habeas petition can
constitute the requisite ‘extraordinary circumstance’ in some circumstances but not
others. Holland held that ‘garden variety claims of excusable neglect’—such as
simple 	miscalculation 	of 	time 	limits—‘do 	not 	constitute 	an 	extraordinary
circumstance. But attorney misconduct can be so egregious as to create an
‘extraordinary circumstance,’ justifying equitable tolling”31
Indeed, the Ninth Circuit has repeatedly found that, despite a defendant’s detrimental
reliance, the attorney’s miscalculation and negligence in general do not constitute extraordinary
circumstances sufficient to warrant equitable tolling.32 The Circuit has also recognized cases where
29 Dkt. 129 at 1 (Declaration).
30 Dkt. 127 at 1‒2. See also Dkt. 131 at 6‒8.
31 Gibbs v. Legrand, 767 F.3d 879, 885 (9th Cir. 2014) (internal quotations omitted).
32 Spitsyn, 345 F.3d at 799 (citing Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001); Miranda,
292 F.3d at 1068).
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attorney misconduct was sufficiently egregious to constitute extraordinary circumstances.33To be
clear, this is not a case where Defendant was ill-advised or abandoned by his attorney. Rather,
Defendant’s attorney altogether failed to advise him of postconviction relief options and the
relevant deadlines.34 This failure to advise may constitute ineffective assistance of counsel.35
However, ineffective assistance of counsel does not necessarily rise to a standard of extraordinary
circumstance and the attorney’s failure here is not so egregious as to justify equitable tolling.
Furthermore, Defendant does not establish that his attorney’s failure to advise was the but-
for cause of his late filed § 2255 Motion. Defendant argues that “trial counsel’s failure to consult
. . . deprived [him] of the information necessary to permit him to decide if he wanted to appeal, or
not.”36 Defendant does not contend that the attorney’s failure made it “impossible to file a petition
on time.”37 Instead, Defendant demonstrated that he was able to seek legal advice—by calling the
Federal Defender’s Office—and file a § 2255 motion on his own. The causal link between the
attorney’s failure and the late filing is therefore disrupted by Defendant’s own inaction. The § 2255
Motion was filed late because Defendant did not pursue postconviction relief any sooner.
33 See Spitsyn, 345 F.3d at 801 (counsel was retained a full year before the § 2255 filing deadline
and completely failed to prepare and file a petition despite multiple contacts by defendant and his
mother, and, counsel retained defendant’s case file for the duration of the limitations period despite
defendant’s request that it be returned). See also Gibbs, 767 F.3d at 887 (counsel guaranteed he
would forward updates regarding defendant’s direct appeal in order for defendant to file for habeas
relief but counsel failed to communicate with defendant for years despite defendant’s repeated
efforts to contact him, including lodging a complaint with the state bar).
34 Dkt. 128 at 1 (Declaration).
35 United States v. Fabian-Baltazar, 931 F.3d 1216, 1218 (9th Cir. 2019).
36 Dkt. 127 at 2.
37 Spitsyn, 345 F.3d at 799 (quoting Brambles, 330 F.3d at 1202).
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Consequently, Defendant cannot show that extraordinary circumstances prevented him from filing
the § 2255 Motion on time and, therefore, equitable tolling is not warranted.
V. 	CONCLUSION
Accordingly, the Motion to Deny at Docket 132 is GRANTED. Because Defendant’s
§ 2255 Motion is untimely and equitable tolling does not apply, the § 2255 Motion at Docket 100
and Amended § 2255 Motion at Docket 127 are DENIED.
VI. 	CERTIFICATE OF APPEALABILITY
A certificate of appealability (“COA”) is required to appeal a motion brought under
28 U.S.C. § 2255. Under the Federal Rules Governing § 2255 Proceedings, “[t]he district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” Where a movant makes “a substantial showing of the denial of a constitutional right,”
a COA should be issued. This standard requires that the movant “demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the issues in a different manner; or
that the questions are adequate to deserve encouragement to proceed further.”
Defendant’s § 2255 Motion does not meet this standard. Defendant has failed to argue that
he demonstrated the requisite due diligence and extraordinary circumstances prevented him from
filing the § 2255 Motion before the statute of limitations expired. Therefore, Defendant is not
entitled to equitable tolling; his § 2255 Motion is untimely and must be denied. Accordingly, the
Court declines to issue a certificate of appealability in this action.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 2nd day of June, 2020.
/s/
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
Timothy M. Burgess
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