U.S. v. Griffin

58 F.Supp.2d 863

UNITED STATES of America, Plaintiff, v. Derrick Wayne GRIFFIN, Defendant.

No. 99 C 1611.

United States District Court, N.D. Illinois, Eastern Division.

June 8, 1999.

David Styler, Assistant United States Attorney, Chicago, IL, for plaintiff.

Derrick Wayne Griffin, Greenville, IL, pro se.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the court is the United States' motion to dismiss defendant Derrick Griffin's motion to vacate, set aside or correct his sentence, which he filed pursuant to 28 U.S.C. § 2255 ("§ 2255"). For the following reasons, the court denies the government's motion.

I. BACKGROUND

On July 23, 1993, defendant Derrick Griffin ("Griffin") pleaded guilty to violating 18 U.S.C. §§ 371 and 1962(c). On October 26, 1993, this court sentenced Griffin to a 300-month term of imprisonment. At the preliminary hearing, arraignment, plea, and sentencing phases, attorney Richard F. Walsh ("Walsh") represented Griffin. Neither Griffin nor Walsh filed a notice of appeal on behalf of Griffin.

From 1993 until 1997, Griffin was in the custody of the State of Illinois. Sometime during 1997, Griffin entered the federal system.

On November 27, 1998, Griffin filed a letter, asking this court to grant him leave to file a § 2255 motion. The court informed Griffin that the court cannot consider ex parte communications and that if he wished to request leave to file a § 2255 motion, he must do so by way of motion. On January 27, 1999, Griffin filed a motion for leave to file an untimely § 2255 motion. On February 23, 1999, this court granted Griffin leave to file a § 2255 motion. At that point, the court made no determination as to whether the motion was timely or not. The court simply allowed Griffin to file the § 2255 motion, leaving it up to the government to raise whatever objections to the motion that there may be, including an objection to the motion's timeliness.

On March 5, 1999, Griffin filed the present § 2255 motion and a memorandum of law in support thereof. On May 25, 1999, the government responded to Griffin's § 2255 motion. In its response, the government moved this court to dismiss Griffin's § 2255 motion as untimely. The court addresses the government's motion to dismiss in the discussion that follows.

II. DISCUSSION

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which established a one-year period of limitation for filing a motion under 28 U.S.C. § 2255. Gendron v. United States, 154 F.3d 672, 673 (7th Cir.1998). In pertinent part, AEDPA amended § 2255 to read as follows:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall 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. For prisoners whose judgment of conviction became final prior to the effective date of AEDPA, the one-year period of limitation contained in § 2255 began to run on April 24, 1996, the date on which AEDPA was enacted. See Gendron, 154 F.3d at 673.

In this case, Griffin's judgment of conviction became final well before the enactment of AEDPA. Thus, Griffin had from one year after April 24, 1996 to file his § 2255 motion.¹ Griffin, however, did not file his § 2255 motion until March 5, 1999, well after the one-year time period had expired. In documents that he submitted to the court, Griffin acknowledges that his § 2255 motion was not filed within the one-year time period. (See Def.'s Mot. in Supp. for Leave To File Out of Time Mot. at 1.) Griffin, however, asks this court to excuse his untimeliness because (1) he was not aware of AEDPA's enactment until after he entered the federal system in 1997 and (2) he told his attorney to appeal and was led to believe that his attorney was pursuing that appeal. Id. at ¶¶ 4-5.

The government has moved to dismiss Griffin's § 2255 motion, arguing that the motion is barred by the one-year period of limitation applicable to § 2255 motions. The government argues that the one-year limitation period contained in § 2255 is jurisdictional and is not subject to equitable tolling.

The parties' arguments present two issues for the court to decide. The first issue is whether the one-year period of limitation applicable to § 2255 motions is (1) jurisdictional and, thus, is not subject to equitable tolling or (2) procedural and, thus, is subject to equitable tolling. The second issue, which the court need only address if it finds that the limitation period is subject to equitable tolling, is whether equitable tolling is warranted in this case. The court will address each of these two issues in turn.

A. Whether the one-year period of limitation applicable to § 2255 motions is jurisdictional or procedural

The first issue the court must decide is whether the one-year period of limitation applicable to § 2255 motions (" § 2255's limitations period") is jurisdictional or whether it is procedural. If the time limitation is jurisdictional, "it cannot be modified and non-compliance is an absolute bar." Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 617-18 (3d Cir. 1998). If it is procedural, it is like a statute of limitations and, thus, is subject to equitable tolling. Id. at 617.

Neither the Supreme Court nor the Seventh Circuit has ever directly addressed the issue of whether § 2255's limitations period is jurisdictional or procedural. United States v. Marcello, No. 98 C 7737, 1999 WL 261827, at *4 (N.D.Ill. Apr.9, 1999). Similarly, the parties did not cite and the court could not find a case from the Northern District of Illinois which directly addresses this issue. Thus, this is a case of first impression in this district.

Although there exists no precedent binding on this court, other circuits have addressed, and provide persuasive authority on, this issue. Specifically, both the Third and the Eighth Circuits have held that § 2255's limitations period is not jurisdictional but is procedural and, thus, subject to equitable tolling. Moore v. United States, 173 F.3d 1131, 1134 (8th Cir.1999); Kapral v. United States, 166 F.3d 565, 567 (3d Cir.1999) (citing Miller, 145 F.3d at 619 n. 1). In addition, the Third, Fifth, Ninth, and Tenth Circuits have held that the one-year period of limitation applicable to § 2254 actions ("§ 2254's limitations period"), which is identical in all material respects to § 2255's limitations period, is procedural and, thus, subject to equitable tolling. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998); Miller, 145 F.3d at 618; Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998); Calderon v. U.S. District Court for Central District of Cal., 128 F.3d 1283, 1287-89 (9th Cir.1997), rev'd on other grounds, 163 F.3d 530 (9th Cir.1998).²

The court examines this body of persuasive authority below. The court begins by discussing in detail the Ninth Circuit's decision in Calderon, which was the first circuit court opinion to address the issue of whether § 2254's limitations period was jurisdictional or procedural. The court will then discuss in detail the Third Circuit's decision in Miller, which followed and explained Calderon. The court will then discuss other court decisions that have followed the Calderon and Miller decisions as well as the only case which has refused to follow Calderon. The court will then announce its holding on this issue.

1. The Ninth Circuit's opinion in Calderon

In Calderon, the Ninth Circuit held that § 2254's limitations period "is a statute of limitations subject to equitable tolling, not a jurisdictional bar." Calderon, 128 F.3d at 1288-89. The court found that the plain language of AEDPA and its legislative history supported its holding. Id. at 1289.

The Calderon court first determined that the plain language of the statute supported its holding. Id. at 1287. In so finding, the court pointed out that § 2254's limitations period "is phrased only as a `period of limitations' and `does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.'" Id. at 1288. The court further noted that "both the Supreme Court and this court have repeatedly held that timing provisions even more unyieldingly phrased than AEDPA's are statutes of limitations subject to tolling." Id. (citations omitted).

Along with the plain language of the statute, the Calderon court found that the legislative history of AEDPA supported its holding. Id. The court observed that "[n]either the conference report ... nor any statements of individual House or Senate members describe the one-year limitation as a restriction on federal court jurisdiction." Id. On the other hand, the court observed, "[m]any members of Congress — including AEDPA's authors in the Senate and its sponsors in the House — did ... describe [the limitations period] as a `statute of limitations.'" Id. (quoting statements from Senators Specter and Hatch and House Representatives Hyde, Cohen and Biden).

The Calderon court rejected the argument that allowing tolling would undermine AEDPA's purpose of "halt[ing] the unacceptable delay which has developed in the federal habeas process." Id. The court explained that "[e]quitable tolling will not be available in most cases, as extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a...