Opinion
Case No. 3:95CR772, 3:02CV7027
December 3, 2002
OPINION AND ORDER
This action is before the Court on Charles Crawford's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, the government's opposition, petitioner's reply and the parties' supplemental briefs. For the reasons hereinafter stated, the § 2255 motion is granted.
The Court appointed counsel for petitioner and requested additional briefing on the issue of whether an actual innocence exception to the AEDPA's statute of limitations should be applied.
On July 10, 1996, an indictment was returned charging petitioner with three counts of using a telephone to cause or facilitate a felony drug conspiracy, in violation of 21 U.S.C. § 843 (b). The three offenses occurred in December, 1994. After a jury trial, petitioner was found guilty of all three counts.
In determining petitioner's sentencing guideline range, the Court applied the provisions of the May 1, 1997, edition of the United States Sentencing Guideline (U.S.S.G.) Manual. Pursuant to § 2D1.6, the Court determined that petitioner's base offense level was 18. An additional two levels were added pursuant to § 2D1.1(b)(3) because the object of the offense was the distribution of controlled substances in a prison. Based upon a total offense level of 20 and a Criminal History Category of VI, petitioner's guideline range was 70 to 87 months imprisonment. On January 23, 1998, the Court sentenced him to 35 months on each count, with Counts 1 and 2 to run consecutively, and Count 3 to run concurrently. The Court ordered this sentence to run consecutively to petitioner's state court sentence.
Petitioner filed a timely appeal, arguing only that the guilty verdict was against the manifest weight of the evidence. The Sixth Circuit affirmed this Court's judgment on November 8, 1999.
Petitioner filed the instant motion to vacate, set aside, or correct sentence on January 14, 2002. However, he signed the petition under penalty of perjury on December 12, 2001. Absent evidence to the contrary in the form of prison logs or other records, the Court assumes that the petition was delivered to prison authorities the day he signed it. See Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). Thus, applying the prison mailbox rule of Houston v. Lack, 487 U.S. 266, 270-72 (1988), the petition is considered filed on December 12, 2001.
In his sole ground for relief, petitioner argues that he received ineffective assistance of counsel due to counsel's failure to object to the two-level enhancement imposed pursuant to § 2D1.1 (b)(3). Petitioner's argument is based on the fact that the provisions of § 2D1.1(b)(3) did not become effective until November 1, 1995, while the conduct for which he was prosecuted occurred in December, 1994. Thus, petitioner argues that counsel should have objected to an ex post facto application of the Guideline provision.
The government does not attempt to justify the imposition of the two-level enhancement. Rather, it argues that petitioner's claim is barred by the one-year limitation period set forth in § 2255. The limitation period, with certain exceptions not applicable in the case sub judice, begins to run from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255, paragraph six. The latest date on which petitioner's conviction would have become final is February 7, 2000, the date on which time expired for filing a petition for writ of certiorari in the United States Supreme Court. Thus, absent any tolling of the statute, petitioner was required to file his § 2255 motion by February 7, 2001. Because it was not filed until December 12, 2001, the government contends it is untimely.
The circuit courts that have addressed the question of when a conviction becomes final for purposes of the limitation period set forth in § 2255 are split with respect to a defendant who does not file a petition for writ of certiorari in the Supreme Court. When a prisoner does not file a petition, the Third, Fifth, Ninth, Tenth and Eleventh Circuits have found that the one-year limitation period runs from the expiration of the 90-day period during which he was entitled to seek certiorari, see Kapral v. United States, 166 F.3d 565, 570 (3d Cir. 1999); United States v. Gamble, 208 F.3d 536 (5th Cir. 2000); United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir. 2000); United States v. Burch, 202 F.3d 1274 (10th Cir. 2000); Kaufmann v. United States, 282 F.3d 1336, 1337-38 (11th Cir. 2002), while the Fourth and Seventh Circuits have held that the limitation period runs from the issuance of the mandate on direct appeal, United States v. Torres, 211 F.3d 836 (4th Cir. 2000); Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998)
Petitioner, on the other hand, argues that the limitation period should be equitably tolled. A court may, in certain circumstances, equitably toll the running of the AEDPA's one-year limitation period. Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001). In Dunlap, the court rejected the "exceptional circumstances" test applied by other circuits and held that equitable tolling is appropriate only after a court has properly considered and balanced the following factors set out in Andrews v. Qrr, 851 F.2d 146 (6th Cir. 1988)
(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.
Id. at 1008-9. Petitioner has the burden of demonstrating that equitable tolling is appropriate. Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).
As a basis for equitable tolling, petitioner argues that he was not informed of the fact that the Court of Appeals had affirmed his conviction until July, 2000, and that he was not transferred into federal custody until December, 2000. The Court finds neither basis warrants equitable tolling.
In a letter dated July 31, 2000, petitioner acknowledges that he had received the appellate court docket sheet indicating that judgment had been entered on November 11, 1999, and that he was informed that the time requesting further review had expired. Petitioner's unnumbered Exhibit 2. Nevertheless, petitioner did not file his habeas petition until December 12, 2001. Petitioner does not explain how being in state custody rather than federal custody prevented him from timely filing his petition. However, even assuming that for some reason he was not able to pursue a federal habeas remedy while in state custody, in light of the fact that he was transferred into federal custody less than five months after receiving notice that his appeal was dismissed, it was unreasonable to wait another year before filing his petition. Thus, the Court concludes that petitioner has failed to demonstrate that equitable tolling is appropriate.
In his supplemental brief requested by the Court, petitioner also argues that an "actual innocence" exception to the statute of limitations should be applied in order for the Court to reach the merits of his claim because he is innocent of the sentencing enhancement that was imposed. No actual innocence exception to § 2244(d)(1) is set forth in the language of the statute itself. However, the Supreme Court has long embraced the concept that when a habeas claim is procedurally barred, a court may hear the claim if a fundamental miscarriage of justice would otherwise occur. Although the Sixth Circuit has not yet decided the issue, at least two district courts have endorsed an actual innocence exception to the AEDPA's statute of limitations. See Holloway v. Jones, 166 F. Supp.2d 1185, 1190 (E.D. Mich. 2001); United States v. Zuno-Arce, 25 F. Supp.2d 1087, 1102 (C.D. Cal. 1998). Other courts have recognized that the exception may exist. However, these courts have avoided deciding the issue by assuming that the exception applies, but concluding that the petitioner had failed to demonstrate actual innocence. See e.g., Whalen v. Randle, 2002 WL 409113 (6th Cir. March 12, 2002); Burton v. Fairman, 2001 WL 925513 (9th Cir. Aug. 15, 2001); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113-14 (2d Cir. 2000); Tate v. Pierson, 177 F. Supp.2d 792, 801 (N.D. Ill. 2001); Neuendorf v. Graves, 110 F. Supp.2d 1144, 1157-60 (N.D. Iowa 2000); but see Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (holding that the petitioner's actual innocence claim does not constitute a "rare and exceptional" circumstance, given that many prisoners maintain they are innocent, and thus did not provide a basis for equitable tolling of the AEDPA's time limitations)
The one-year limitation period of §§ 2244(d)(1) serves the well-recognized interest in the finality of judgments in criminal cases. Duncan v. Walker, 533 U.S. 167, 179 (2001). The provision reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review. Id. Recognizing the importance of the principle of finality, the Court nevertheless finds instructive the Supreme Court's consistent reaffirmation of the existence and importance of the exception for otherwise procedurally barred claims for manifest miscarriages of justice. See Schlup v. Delo, 513 U.S. 298, 320-21 (1995) (collecting cases). In Schlup, the Court recognized that habeas corpus is, "at its core," an equitable remedy and explained that "the fundamental miscarriage of justice exception seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case." Id. at 319, 324; see also Murray v. Carrier, 477 U.S. 478, 495 (1986) ("principles of comity and finality that inform the concepts of cause and prejudice `must yield to the imperative of correcting a fundamentally unjust incarceration'"). As one court stated, "it is an unacceptable deviation from our fundamental system of justice to automatically prevent the assertion of actual innocence simply because a defendant has not observed procedural avenues available to him." United States v. Maybeck, 23 F.3d 888, 892 (4th Cir. 1994). Finding no rationale for limiting the exception only to claims that are procedurally barred for reasons other than untimely filing, the Court holds that an exception for manifest miscarriages of justice exists to the AEDPA's statute of limitations.
The Court turns then to the question of whether petitioner has in fact demonstrated a manifest miscarriage of justice. "To ensure that the fundamental miscarriage of justice exception would remain `rare' and would only be applied in the `extraordinary case,' while at the same time ensuring that the exception would extend relief to those who were truly deserving, [the Supreme Court] explicitly tied the miscarriage of justice exception to the petitioner's innocence." Schlup, 513 U.S. at 321. In the context of a petitioner's claim of actual innocence of the crime itself, the Supreme Court has explained that an otherwise procedurally barred constitutional claim may be heard if the petitioner "establish[es] that under the probative evidence he has a colorable claim of factual innocence." Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986); Carrier, 477 U.S. at 496 ("where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default"). Thus, actual innocence in this context means factual innocence, not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998).
The Supreme Court has also had the opportunity to address the meaning of actual innocence in the context of a petitioner's claim that he is actually innocent of the sentence imposed. In Smith v. Murray, 477 U.S. 527 (1986), the Court found the petitioner was not "actually innocent" of the death sentence imposed as a result of the allegedly improper admission of psychiatric testimony. After acknowledging the "actual innocence" standard set forth in Carrier, the Court observed that "the concept of `actual,' as distinct from `legal,' innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense." Id. at 537. The Court found that the petitioner in that case had failed to show actual innocence of the death penalty because alleged error "neither precluded the development of true facts nor resulted in the admission of false ones" and, thus, did not serve to pervert the jury's deliberations concerning his sentence. Id. at 538.
In Dugger v. Adams, 489 U.S. 401 (1989), the petitioner claimed he was actually innocent of the death sentence imposed based on the fact that the trial judge found an equal number of aggravating and mitigating circumstances. Without endeavoring to define actual innocence in this context, the Court stated that "[d]emonstrating that an error is by its nature the kind of error that might have affected the accuracy of the death sentence is far from demonstrating that an individual defendant probably is `actually innocent' of the sentence he or she received." Id. at 412, n. 6.
In Sawyer v. Whitley, 505 U.S. 333 (1992), the Court was again presented with a claim that the petitioner was actually innocent of the death sentence. Again recognizing the difficulty of translating "actual innocence" into the context of a sentencing error, the Court adopted an eligibility test. Id. at 340, 347. The Court held that to show "actual innocence" one must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the particular penalty. Id. at 336. The Court later explained that the Sawyer standard was fashioned to reflect the relative importance of a claim of an erroneous sentence as compared to the correspondingly greater injustice that is implicated by a claim of actual innocence of the crime itself. Schlup, 513 U.S. at 325.
Although the government acknowledges that the actual innocence exception may apply to the penalty phase of a case, it argues that such an application is limited to capital cases and, therefore, cannot apply to petitioner's non-capital case. The Court disagrees. The Supreme Court has never limited the exception to capital cases. Although the Sixth Circuit has not addressed the issue, several courts that have considered the question have held that the actual innocence exception is applicable in the context of a challenge to a non-capital sentence. See United States v. Maybeck, 23 F.3d 888, 893 (4th Cir. 1994); Mills v. Jordan, 979 F.2d 1273, 1278-79 (7th Cir. 1992); Mobley v. United States, 974 F. Supp. 553, 557 (E.D. Va. 1997); see also Sones v. Hargett, 61 F.3d 410, 418 n. 16 (5th Cir. 1995) (assuming without deciding that actual innocence exception applies in non-capital sentencing cases); but see Embrey Hershberger, 131 F.3d 739, 740 (8th Cir. 1997) ( Sawyer applies only to the sentencing phase of death cases); Reid v. State of Oklahoma, 101 F.3d 628, 630 (10th Cir. 1996) (a person cannot be actually innocent of a noncapital sentence). The Court agrees with the Fourth Circuit's reasoning in Maybeck:
Except for the obvious difference in the severity of the sentences, we see little difference between holding that a defendant can be innocent of the acts required to enhance a sentence in a death case and applying a parallel rationale in non-capital cases. . . In capital sentencing cases, the jury has determined guilt, and when aggravating factors are present, the sentence is enhanced to one of death. In non-capital enhancement cases, the length of a defendant's sentence may be aggravated by factors specified by statute or the Guidelines. . . Hence, a defendant in either a capital or non-capital case would, unless excepted from the cause and prejudice requirement, suffer the same general consequence (an enhanced sentence) from being held responsible for an act of which he or she is actually innocent.Maybeck, 23 F.3d at 893. Thus, the Court finds that the actual innocence exception applies in non-capital sentencing cases.
The Court is not persuaded otherwise by the two Sixth Circuit cases cited by the government. Neither case militates against a conclusion that an actual innocence exception should apply in non-capital sentencing cases. In Tate v. Hemingway, 2001 WL 345772 (6th Cir. March 27, 2001) (unreported), the petitioner had filed a § 2241 petition challenging his sentence after previously filing a § 2255 motion which had been denied. Applying the savings clause of § 2255, the court found that Tate's remedy under § 2255 was not rendered inadequate or ineffective. It concluded that, because Tate had not relied on any intervening Supreme Court decision for relief, it need not resolve the issue of "whether and to what extent someone like Tate can show actual innocence in relation to his claim challenging the imposition of his sentence." Tate, 2001 WL 345772 at *2. Thus, the court left the issue undecided.
The fifth paragraph of § 2255, the savings clause, provides as follows:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
Ewing v. McMackin, 799 F.2d 1143 (6th Cir. 1986), also cited by the government, was decided before Sawyer and involved a habeas petitioner whose claims had been procedurally defaulted. The court found that the petitioner had failed to show cause for his default or prejudice but noted that the court could still hear the claims in order to correct a "fundamentally unjust incarceration." Id. at 1152 (citing Carrier, 477 U.S. at 495). It then set forth the familiar Carrier standard for determining a fundamental miscarriage of justice and remanded to the district court to consider the issue. Id. There is no indication that it even considered whether the actual innocence exception to a procedural default could be applied in a sentencing context. Thus, the Court finds no guidance on the issue from either case cited by the government.
In the case sub judice, petitioner's sentence was enhanced under U.S.S.G. § 2D1.1(b)(3) which was not in effect at the time he had committed his crime. As the Eighth Circuit noted in a case in which the defendant was sentenced under a statute that was not in force when he committed his offenses, "It would be difficult to think of one who is more `innocent' of a sentence than a defendant sentenced under a statute that by its very terms does not even apply to the defendant." Jones v. State of Arkansas, 929 F.2d 375, 381 (8th Cir. 1991). The Court notes that this is not a case in which the petitioner is simply challenging the admission of evidence which supported a sentencing enhancement as in Smith v. Murray, nor is it a case in which petitioner is merely challenging the accuracy of a sentence as in Dugger. This is not a case where the error in applying the enhancement is in question. Defendant's attorney, the probation officer, the United States attorney, and, unfortunately, this Court applied a guideline which was not in existence at the time of petitioner's offense. Applying the eligibility test set forth in Sawyer, but for the constitutional error of applying § 2D1.1(b)(3) in an ex post facto manner, petitioner could not reasonably have been found to be eligible for the sentencing enhancement pursuant to that section. Although petitioner is not innocent of the crime, he is, in fact, innocent of the enhancement. Thus, the Court finds that petitioner has demonstrated a fundamental miscarriage of justice in that he is actually innocent of the sentence imposed, and his untimely filing of his § 2255 motion is excused.
The Court next turns to the merits of petitioner's claim. Petitioner contends that he received ineffective assistance of counsel due to counsel's failure to object to enhancement of his sentence pursuant to U.S.S.G. § 2D1.1(b)(3). A petitioner alleging ineffective assistance of counsel must show both that counsel's performance was deficient and that this deficient performance prejudiced the defense so as to render the proceeding unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to show that counsel's performance was deficient, petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688. In order to show that defense counsel's performance was sufficiently prejudicial to the defense, petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Supreme Court defined "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id.
In the case sub judice, the Court accepted the recommendation of the probation officer contained in the presentence report that a two-point sentencing enhancement should be applied pursuant to U.S.S.G. § 2D1.1(b)(3). As a result, petitioner's total offense level was 20, producing a Sentencing Guideline range of 70-87 months. The Court indicated that it would sentence at the low end of the range and imposed a sentence of 70 months. Although § 2D1.1(b)(3) became effective after the date of petitioner's offense, counsel did not object to imposition of the enhancement.
Prevailing professional norms require counsel to "inform himself . . . fully on the facts and the law . . . ." United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990) (citing ABA Standards 4-3.8 and finding counsel's performance deficient for failing to learn of a Supreme Court decision); see also Hill v. Lockhart, 877 F.2d 698, 703 (8th Cir. 1989) (failure of counsel to ascertain, through minimal research, the applicable statute governing parole eligibility fell below the objective standard of reasonableness required by the Sixth Amendment); United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997) (ignoring a relevant Guideline provision amounted to error so serious counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment). The same principle applies in this case where counsel failed to ascertain, through minimal research, the effective date of the Guideline provision for enhancement of petitioner's sentence. The Court finds that counsel's failure to do so rendered his performance constitutionally deficient.
But for the two-point enhancement, the appropriate sentencing range would have been 57-71 months. Because this Court would have sentenced at the low end of the range and imposed a 57 month sentence, counsel's failure to object resulted in a 13 month increase in petitioner's sentence. Since petitioner would have received a significantly lower sentence but for counsel's error, Strickland's second prong is satisfied. See Glover v. United States, 531 U.S. 198, 204 (2001) (increase in prison sentence of from 6 to 21 months constituted prejudice required for establishing ineffective assistance of counsel). Accordingly, the Court finds petitioner's ineffective assistance of counsel claim well taken.
THEREFORE, for the foregoing reasons, good cause appearing, it is
ORDERED that petitioner's motion, to the extent that he moves to correct sentence, be, and hereby is, GRANTED; and it is
FURTHER ORDERED that a resentencing hearing is scheduled for December 19, 2002 at 10:30 AM; and it is
FURTHER ORDERED that the clerk of courts shall send a certified copy of this order to the following: FCI McKean, P.O. Box 5000, Bradford, PA 16701; Office of Pretrial Services; Office of United States Probation Service; Office of United States Marshal; and Bureau of Prisons, Washington, D.C.