Dixon v. United States

304 A.3d 966

Dana DIXON, Appellant, v. UNITED STATES, Appellee.

No. 22-CO-0783

District of Columbia Court of Appeals.

Submitted October 16, 2023

Decided November 22, 2023

Adrian E. Madsen was on the brief for appellant.

Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, John P. Mannarino, Simran Dhillon and Chimnomnso N. Kalu, Assistant United States Attorneys, were on the brief for appellee.

Before Beckwith and Alikhan, Associate Judges, and Thompson, Senior Judge.

Thompson, Senior Judge:

In November 2016, appellant Dana Dixon pled guilty to two counts of second-degree burglary, and the Superior Court sentenced him to consecutive terms of 36 months’ imprisonment for each count, to be followed by supervised release. In July 2022, through counsel, appellant filed a Super. Ct. Crim. R. 35(b)(1) motion for reduction or amendment of his sentence. In opposing the motion, the government argued primarily that it was procedurally barred because it was filed more than 120 days after the sentence was imposed. Agreeing with the government, the Superior Court denied the motion. Appellant now challenges that ruling, contending that the Rule 35(b)(1) 120 -day limit is subject to equitable tolling or else is a "third kind of limitation," Dolan v. United States , 560 U.S. 605, 611, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010), rather than a mandatory claim-processing rule, that left the trial court free to grant his motion. Unpersuaded by appellant's arguments, we affirm.

I. Background

After appellant's June 29, 2015, indictment (on ten criminal counts related to a string of residential burglaries), he entered into an agreement with the government to plead guilty to two counts of burglary. At the time, he was serving sentences in Maryland for unrelated crimes, but on August 3, 2016, he was committed to the D.C. Jail pending disposition of his District of Columbia case. During the sentencing proceeding on November 16, 2016, the Superior Court judge (the Honorable Zoe Bush) explained to the parties, "[t]he [two 36-month] sentences are to run consecutive to any other sentence, consecutive to one another." Appellant's trial counsel stated, "he's going to serve the Maryland sentence, technically, first." The initial judgment and commitment order repeated that the sentences were "to be served consecutively to each other and any other [s]entence of [i]ncarceration," but also stated that "the [s]entence is to com[m]ence as of 11/16/2016." The sentencing transcript shows that this language was added at the request of defense counsel, who asked the court to include it to ensure that appellant would get time-served credit for any travel delay in returning him to Maryland custody, which counsel explained "sometimes messes up the [time-served] calculation."

Following the sentencing hearing, the Bureau of Prisons (BOP) contacted Judge Bush's chambers and asked whether the clause "the [s]entence is to commence as of 11/16/2016" would make the District of Columbia sentence "run concurrent[ly]" with the Maryland sentence. Judge Bush scheduled a post-disposition status hearing so the BOP's inquiry could be addressed. At the hearing, held on March 3, 2017, appellant's counsel waived appellant's presence and also requested that the court make the two District of Columbia sentences concurrent to the Maryland sentence. Counsel explained that she wanted to ensure that appellant received credit toward the District of Columbia sentences for the time appellant had served in the Maryland facility in the event his Maryland conviction was vacated on appeal. The court did not grant the request for a sentence modification, but it issued an amended judgment and commitment order that removed the reference to the date the sentence was to begin. Thus, the amended judgment and commitment order states that appellant's sentences for the two burglary counts "are to be served consecutively to each other and any other [s]entence of [i]ncarceration."

On February 7, 2022, appellant was transferred from the Maryland Department of Corrections into federal custody to begin serving his District of Columbia sentences. That month, appellant wrote to Judge Bush, asking for assistance in requesting that the BOP do a "sentence computation" and stating that the court had "started [appellant's] sentence] on th[e] day" of his guilty plea. In April 2022, appellant wrote a similar letter to Judge Juliet McKenna, who had assumed responsibility for the case, repeating that he was told by the judge at sentencing that his sentence was starting on that day and stating that he "thought [he] was going home on February the 7th 2022." Through counsel appointed by the court to advise and assist appellant in the matter, appellant filed his July 10, 2022, motion under Rule 35(b), requesting inter alia that the court suspend his sentence as to all but time served or modify his two District of Columbia sentences to run concurrently with each other. As noted above, the government opposed the motion, arguing that it was time-barred as it had been filed more than 120 days after the imposition of appellant's sentence. By order dated September 16, 2022, the trial court denied appellant's motion, relying on this court's holding in Smith v. United States , 984 A.2d 196 (D.C. 2009), that Rule 35(b) is a mandatory claim-processing rule that must be enforced when timely invoked by the government (as it was here). This appeal followed.

II. Discussion

The proper construction of court rules of procedure is a legal question that we review de novo. See Jenkins v. United States , 75 A.3d 174, 195 (D.C. 2013). Thus, we review de novo the Superior Court's determination that it was required to dismiss appellant's Rule 35(b) motion as time-barred.

In Smith , this court recognized that our precedent classifying Rule 35(b) as a jurisdictional rule had been "substantially undermined" by Supreme Court jurisprudence. 984 A.2d at 200. We held that Rule 35(b) is not a jurisdictional limitation on the Superior Court's authority to act, but rather a claim-processing rule. Id. at 201. Quoting Eberhart v. United States , 546 U.S. 12, 19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam), we recognized that "claim-processing rules [en]sure relief to a party properly raising them." Id. at 199. But we also said that such rules "can be relaxed by the [c]ourt in the exercise of its discretion." Id. at 200 (quoting Schacht v. United States , 398 U.S. 58, 64, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970) ).

In subsequent cases, we considered whether other claim-processing rules of this court and the Superior Court are subject to equitable tolling. In Mathis v. District of Columbia Housing Authority , 124 A.3d 1089, 1101-03 (D.C. 2015), we held that the D.C. App. R. 15 deadline for petitioning for a review of agency action was equitably tolled where the agency in question had provided the petitioner ambiguous or misleading advice about the right to judicial review. Similarly, in Brewer v. District of Columbia Office of Employee Appeals , 163 A.3d 799, 803 (D.C. 2017), we held that a petition for review by the Superior Court could proceed where it was filed after the 30-day deadline of Super. Ct. Agency Rev. R. 1(a), but where the petitioner had been diligent in attempting to timely file the petition and the agency respondent had at least arguably waived the untimeliness of the petition. ¹

Both Mathis and Brewer were decided prior to the Supreme Court's decision in Nutraceutical Corp. v. Lambert , 586 U.S. ––––, 139 S.Ct. 710, 203 L.Ed.2d 43 (2019). ² There, the Supreme Court rejected the application of equitable tolling to Fed. R. Civ. Pro. 23(f) (establishing a time limit for appealing from an order granting or denying class-action certification). Id. at 713. The Court explained that "[w]hether a rule precludes equitable tolling turns ... on whether the text of the rule leaves room for such flexibility." Id. at 714. The Court held that Rule 23(f) is not subject to equitable tolling because the text of the rule uses mandatory language and because other rules explicitly bar courts from excusing the deadline in Rule 23(f) for good cause. Id. at 715 ("Where the pertinent rule or rules invoked show a clear intent to preclude tolling, courts are without authority to make exceptions merely because a litigant appears to have been diligent, reasonably mistaken, or otherwise deserving."). We have no occasion here to revisit the rules at issue in Mathis and Brewer , but, following the lead of Nutraceutical Corp. , we now hold for the reasons that follow that the 120-day limit of Super. Ct. Crim. R. 35(b) is a mandatory claim-processing rule that is not subject to equitable tolling.

Our first step in considering whether Rule 35(b) is a mandatory claim-processing rule is to look at the Rule's text and its surrounding context to discern the drafter's intent. See Nutraceutical Corp. , 139 S. Ct. at 714. Rule 35(b)(1) states in full:

A motion to reduce a sentence may be made not later than 120 days after the sentence is imposed or probation is revoked, or not later than 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or not later than 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court must decide a motion within a reasonable time.

Super. Ct. Crim. R. 35(b)(1) (emphasis added). The Supreme Court has treated language similar to the "may be made not later than" language of Rule 35(b)(1) as establishing an "unqualified bar" on procedural steps taken after the specified time. See Merck & Co. v. Reynolds , 559 U.S. 633, 650, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010) (discussing the statute of repose established by 28 U.S.C. § 1658(b)(2), which states that certain private actions for violations of the securities laws "may be brought not...