USA v. Young

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA, )
)
Plaintiff, ) 3:09-cr-00129 JWS
)
vs. ) ORDER AND OPINION
)
ANDREW WILLIAM YOUNG, ) [Re: Motion at Docket 170]
)
Defendant. )
)
I. MOTION PRESENTED
At docket 170 and supplemented at docket 186, defendant Andrew William
Young moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. The motion was briefed, and the magistrate judge filed a report at docket 196
recommending that the motion be dismissed as untimely. Young did not file an
objection, and the court adopted the m agistrate judge’s report and recommendation.
Young sought and was granted relief to file late objections and supplement the record,
and the court vacated its order and judgment to consider Young’s newly proffered
documents. Young filed his objection and supporting exhibits at docket 203. The
Government responded at docket 207. Young filed a notice at docket 211, informing
Case 3:09-cr-00129-JWS Document 212 Filed 02/17/15 Page 1 of 7

the court of a recent Supreme Court decision he believes is relevant to the equitable
tolling issues presented here.
II. BACKGROUND
The background facts are set forth in the magistrate judge’s report at docket 196.
The report, after a careful analysis, concluded that equitable tolling was not warranted
and recommended that Young’s § 2255 motion be dismissed as untimely. Young
objects to the magistrate judge’s conclusion that he failed to exercise reasonable
diligence and failed to show that an extraordinary circumstance prevented him from
filing on time. His objection relies on evidence that was not presented to the magistrate
judge. The evidence consists of communications with and about his attorney that he
believes demonstrate he is entitled to equitable tolling. The court granted Young
permission to proceed with his late objection and to rely on the supplemental factual
allegations.
III. STANDARD OF REVIEW
The district court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate.”1 When reviewing the magistrate judge’s
report and recommendation in a case such as this one, the district court conducts de
128 U.S.C. § 636(b)(1).
-2-
Case 3:09-cr-00129-JWS Document 212 Filed 02/17/15 Page 2 of 7

novo review of all conclusions of law,2 and any findings of fact to which objections have
been made.3 Uncontested findings of fact are reviewed for clear error.4
IV. DISCUSSION
Having examined the file, the magistrate judge’s report and recommendation,
Young’s objection, and the Government’s response, and in light of the standard of
review articulated above, the court concludes that the magistrate judge has correctly
found the facts and applied the law. The court adopts Magistrate Judge Smith’s
thorough and well-reasoned report and her recommended findings of fact and
conclusions of law. Young’s objection does not alter this court’s conclusion.
Young’s objection contends that the magistrate judge wrongly concluded that he
failed to exercise reasonable diligence and that no extraordinary circumstances were
present. He relies on newly advanced arguments and the exhibits attached to his
objection. The exhibits consist in part of letters that were written to Bryon Collins, the
attorney who represented him when he attempted to withdraw his plea and at
sentencing. Two of the letters were sent in the fall of 2012, more than nine months
after his direct appeal was due. Young wrote Collins again in early 2013. The letters
indicate that Young wanted Mr. Collins to file a direct appeal and was dissatisfied with
the lack of communication. The deadline for filing such an appeal had long past, but
2Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
328 U.S.C. § 636(b)(1).
4Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 906 (3d Cir. 1992).
-3-
Case 3:09-cr-00129-JWS Document 212 Filed 02/17/15 Page 3 of 7

Young believed that the deadline was “steadily approaching” as of January 25, 2013.5
In addition to his letters to Collins, Young wrote the magistrate judge two letters,
complaining that Collins had not filed an appeal on his behalf and was not responding
to his inquiries.
Young asserts that these letters demonstrate his diligence in attempting to get
his direct appeal filed and show that Collins had abandoned him, which he argues
constitutes an extraordinary circumstance warranting equitable tolling of his subsequent
§ 2255 petition. He cites a recent Ninth Circuit case, Gibbs v. Legrand6 in support. In
Gibbs the Ninth Circuit held that equitable tolling of the federal habeas corpus deadline
was warranted where the petitioner’s attorney had effectively abandoned him, causing
the petitioner to miss the federal filing deadline. The court in Gibbs explained that
attorney abandonment “can, in certain circumstances, constitute an extraordinary
circumstance warranting equitable tolling.”7 The court noted that abandonment occurs
when the attorney fails “to inform a client that his case has been decided, particularly
where that decision implicates the client’s ability to bring further proceedings and the
attorney has committed himself to informing his client of such a development.”8 It then
found that the attorney had abandoned the petitioner when he failed to inform the
petitioner that his case had been decided by the state supreme court, despite the
petitioner’s repeated attempts to engage the attorney about his pending post conviction
5Doc. 202-6 at p. 1.
6767 F.3d 879 (9th Cir. 2014).
7Id. at 882.
8Id. at 886.
-4-
Case 3:09-cr-00129-JWS Document 212 Filed 02/17/15 Page 4 of 7

process and despite the attorney’s explicit promise to inform his client of any
developments in the case. That abandonment implicated the client’s ability to bring
further proceedings, warranting equitable tolling.9
Gibbs is distinguishable from the situation here. In Gibbs, the attorney for the
petitioner was clearly the attorney of record hired for the appeal, actually filed the
appeal, and explicitly committed to keeping the petitioner informed of all developments.
Here, there is no corroborating evidence that Collins explicitly agreed to file an appeal.
Although Collins’s affidavit submitted in conjunction with Young’s petition states that
Young did not specifically tell him not to file an appeal and that he should have filed one
as to the issue of whether the plea should have been withdrawn,10 Collins does not
state that he actually agreed to file the appeal or that he would keep Young abreast of
all developments. Indeed, the representation agreement between Young and Collins,
which was cited by Young in his petition, suggests that Collins was hired to pursue a
suppression motion in the event Young was allowed to withdraw his guilty plea and that
an appeal was conditional.11 In other words, the scope of the representation was not
clear.
Furthermore, as outlined by the Government in its response, the letters
demonstrate that Young knew that Collins had not filed an appeal. Unlike in Gibbs,
where the petitioner did not know the deadlines were running, here, Young was under
9Id. at 888.
10Doc. 190.
11Doc. 186-1 at p. 1.
-5-
Case 3:09-cr-00129-JWS Document 212 Filed 02/17/15 Page 5 of 7

no impression that an appeal was pending. He knew that at least some clock was
running. Thus, the attorney abandonment that the Ninth Circuit found egregious and
extraordinary in Gibbs is not present here. At most, the letters show that Collins and
Young did not know the deadline for filing a direct appeal, but attorney negligence is not
an extraordinary circumstance warranting equitable tolling.12
Moreover, despite any failures on the part of Collins as to the direct appeal, there
is still no demonstration that Young was prevented from filing a subsequent § 2255
petition as a result of those failures. Young knew that he was at risk of missing a
deadline and knew that his attorney was not acting on his behalf. As noted by the
magistrate judge, the attorney’s failure to follow through with the direct appeal was not
preventing Young from proceeding with a § 2255 petition related to ineffective
assistance of counsel.13
At docket 211, Young notified the court about a recent Supreme Court case,
Christeson v. Roper.14 Relying on Christeson, Young advances another new argument;
that Collins should have told him that the clock was running as to his § 2255 petition.
Christeson is inapposite. The Court in Christeson addressed whether the lower courts
should have allowed a substitution of counsel so that new counsel could file a motion to
reopen final judgment and raise an argument about ineffective assistance of counsel.
The court noted that to obtain such relief the petitioner would have to show he was
12Gibbs, 767 F.3d at 885.
13See doc. 196 at p. 13 (citing Massaro v. United States, 538 U.S. 500, 504 (2003).
14135 S.Ct. 891 (2015).
-6-
Case 3:09-cr-00129-JWS Document 212 Filed 02/17/15 Page 6 of 7

entitled to equitable tolling, but it made no ruling as to that issue.15 Thus, Christeson
does not dictate a different outcome than the one recommended by the magistrate
judge.
V. CONCLUSION
Based on the foregoing, the motion at docket 170 as supplemented at
docket 186 is DENIED.
DATED this 17th day of February 2015.
/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE
15Id. at 895-96.
-7-
Case 3:09-cr-00129-JWS Document 212 Filed 02/17/15 Page 7 of 7