Odie v. United States

42 F.4th 940

Clifton C. ODIE, Plaintiff - Appellant

v.UNITED STATES of America, Respondent - Appellee

No. 21-2652

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2022

Filed: August 2, 2022

Counsel who presented argument on behalf of the appellant and appeared on the appellant brief was Bryan Dean, AFPD, of Bismarck, ND.

Counsel who presented argument on behalf of the appellee and appeared on the appellee brief was Abby Roesler, AUSA, of Pierre, SD.

Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Appellant Clifton C. Odie filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, asserting that his 2000 Illinois state conviction could not qualify as a prior felony drug offense under 21 U.S.C. § 851. The district court¹ denied Odie the requested post-conviction relief because of his untimely filing, but it granted a certificate of appealability on the issue of whether Odie's § 2255 motion is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Having jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we affirm.

I.

In 2017, Odie pled guilty to conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Consistent with a written plea agreement, the government filed an information and notice of intent to seek an enhanced penalty pursuant to § 851(a). The information was based on Odie's 2000 Illinois state conviction for possession of a controlled substance, in violation of 720 Ill. Comp. Stat. 570/402(c). As explained in the plea agreement, the effect of the information was, in part, to increase the mandatory minimum term of imprisonment from five to ten years. Odie agreed in the plea agreement not to challenge the enhanced penalty based on his prior conviction.

At the change of plea hearing, the district court noted that the government had filed the § 851 information and asked Odie if he admitted that he had been convicted of the offense that formed the basis for the information. Odie's counsel responded that Odie did not "specifically remember" the conviction, despite Odie's agreement in the plea agreement not to challenge an enhanced penalty based on his prior conviction, though his counsel acknowledged that it was "a valid conviction." The district court then asked no further questions about or otherwise discussed the 2000 Illinois state conviction or the requested § 851 enhancement.

Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR included the conviction identified in the § 851 information and calculated Odie's United States Sentencing Guidelines range as 262 to 327 months imprisonment. At the sentencing hearing, Odie made no objections regarding his 2000 Illinois state conviction, the requested § 851 enhancement, or the mandatory minimum. The district court did not comment on the prior state conviction or discuss the § 851 information. It ultimately imposed a below-Guidelines sentence of 240 months imprisonment, to be followed by 8 years supervised release, and entered judgment in 2018. Odie never filed a notice of appeal.

In 2020, Odie filed a pro se motion for 28 U.S.C. § 2255 relief. He raised one argument: his 2000 Illinois state conviction did not qualify as a prior felony drug offense under § 851. Odie relied on United States v. De La Torre, a Seventh Circuit decision concluding that 720 Ill. Comp. Stat. 570/402(c) could not serve as a § 851 predicate offense. See 940 F.3d 938, 948-50 (7th Cir. 2019). Odie argued that his motion was timely under § 2255(f)(4), claiming that De La Torre, decided less than a year before his § 2255 filing, revealed a new fact pursuant to § 2255(f)(4) and thus caused the clock on § 2255 ’s one-year limitations period to start over. The government filed a motion to dismiss, arguing that Odie's motion was untimely under § 2255(f) and that De La Torre did not constitute a new fact under § 2255(f)(4). The government also argued that the § 2255 motion was procedurally barred because Odie failed to file a direct appeal. The matter was referred to a magistrate judge, who issued a report and recommendation concluding that Odie's § 2255 motion was not untimely under § 2255(f)(4). The magistrate judge also concluded that Odie made a prima facie showing of cause and prejudice to excuse procedural default and ultimately recommended denial of the government's motion to dismiss.

The United States objected to the magistrate judge's report and recommendation, renewing its arguments that Odie's motion was untimely under § 2255(f) and procedurally barred. In response, Odie again argued that his motion was timely under § 2255(f)(4) because of De La Torre. In the alternative, Odie asserted that equitable tolling of the § 2255(f) limitations period was warranted. The district court rejected the magistrate judge's report and recommendation and granted the government's motion to dismiss. The district court held that De La Torre did not constitute a new fact and that Odie's motion was time-barred under § 2255(f). The district court further concluded that Odie's motion was not subject to equitable tolling, finding that he did "not allege[ ] facts to show that circumstances beyond his control prevented him from filing his petition within the statute of limitations set forth by [§] 2255[(f)](1), or that the government's conduct ‘lulled’ him into inaction." Because the district court determined that Odie's motion was time-barred and not subject to equitable tolling, it declined to address the procedural default issue. The district court granted Odie a certificate of appealability "on the issue of whether Odie's § 2255 petition is time-barred under the AEDPA."

II.

Odie argues that the district court erroneously held that his § 2255 motion was time-barred and, alternatively, that he presented sufficient facts to justify equitable tolling. "We review de novo the district court's decision to dismiss [Odie's] § 2255 motion[ ] based on the statute of limitations." E.J.R.E. v. United States, 453 F.3d 1094, 1097 (8th Cir. 2006). We similarly review de novo Odie's contention that "the doctrine of equitable tolling should be applied to toll the one-year statute of limitations provided under § 2255." Id. at 1098. "[A]ny underlying fact-findings are reviewed for clear error." United States v. Hernandez, 436 F.3d 851, 855 (8th Cir. 2006) (alteration in original) (citation omitted).

" Section 2255 ‘was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.’ " Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) ). " Section 2255 offers potential remedies in several circumstances, including cases shown to contain jurisdictional errors, constitutional errors, and errors of law." Raymond v. United States, 933 F.3d 988, 991 (8th Cir. 2019). The AEDPA "imposed, among other things, a one-year statute of limitations on motions by prisoners under section 2255 seeking to modify, vacate, or correct their federal sentences."

Muhammad v. United States, 735 F.3d 812, 815 (8th Cir. 2013). Equitable tolling may be applied to the one-year statute of limitations. See id.

We begin with Odie's claim that his motion is timely under § 2255(f)(4). Section 2255(f) sets forth the one-year limitations period for federal prisoners seeking relief under § 2255. As relevant here, a federal prisoner may timely file a § 2255 motion within one year of "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." § 2255(f)(4) ; see also Ingram v. United States, 932 F.3d 1084, 1088-89 (8th Cir. 2019) ("To be entitled to invoke the statute of limitations contained in section 2255(f)(4), we have said that a petitioner must show the existence of a new fact, while also demonstrating that he acted with diligence to discover the new fact." (citation omitted)).

Odie argues that De La Torre revealed to him the "new fact" that his prior 2000 Illinois state conviction could "not qualify as [a] prior felony drug offense[ ] for purposes of the § 851 enhancement." De La Torre, 940 F.3d at 949. In De La Torre, the Seventh Circuit determined that 720 Ill. Comp. Stat. 570/402(c) is "categorically broader than the federal definition of a felony drug offense." 940 F.3d at 949. Odie acknowledges that a judicial decision is not a new fact for purposes of § 2255(f)(4). See E.J.R.E., 453 F.3d at 1098 ; see also Ingram, 932 F.3d at 1089. On appeal, Odie avoids labeling De La Torre as the new fact that makes his motion timely but rather depicts the decision as revealing the fact that his 2000 Illinois state conviction was categorically overbroad under § 851.²

Despite Odie avoiding labeling De La Torre as the new fact that makes his motion timely, we agree with the district court that Odie relies on the De La Torre decision as the discoverable fact. The Seventh Circuit, in De La Torre, analyzed federal and state law to reach a legal conclusion about a state statute. 940 F.3d at 949. Odie presents this legal conclusion as the new fact. Odie compares his reliance on De La Torre to Ingram, in which this Court determined that a § 2255 movant permissibly relied on facts presented in a district court decision about the disparate application of § 851, not the decision itself. See Ingram, 932 F.3d at 1089-90. In Ingram, the movant relied on a court's "[o]verview [o]f [t]he [u]nderlying [d]ata [o]n § 851 [e]nhancements," which was based on a United States Sentencing Commission report and raw data that the Commission provided the district court. Id. at 1089-90 (alterations in original). We find Ingram distinguishable, because the movant there was not relying on a judicial decision itself but rather a factual report contained within. See id. at 1090. Here, ...