United States District Court, D. Colorado
February 10, 2015
UNITED STATES OF AMERICA,
WILLIAM I. WILSON, Defendant/Movant Criminal Action No. 08-cr-00263-KHV
For USA, Plaintiff (1:08-cr-00263-KHV): James R. Allison, Kenneth Mark Harmon, LEAD ATTORNEYS, Michele M. Kelley, Denver, CO.
William I. Wilson, Petitioner (1:14-cv-03104-KHV), Pro se, LITTLETON, CO.
For USA, Respondent (1:14-cv-03104-KHV): James R. Allison, LEAD ATTORNEY, U.S. Attorney's Office-Denver, Denver, CO.
ORDER DENYING 28 U.S.C. § 2255 MOTION
KATHRYN H. VRATIL, United States District Judge.
Movant, William I. Wilson, has filed, pro se, a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 464), challenging the validity of his convictions and sentence in this criminal action. The Court construes Movant's filing liberally because he is not represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court will not act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons discussed below, the § 2255 motion will be dismissed as untimely.
I. Procedural History
Following a jury trial in November 2010, Movant was convicted of numerous counts of bank fraud, and aiding and abetting the same, in violation of 18 U.S.C. § § 1344 and 2. The Court sentenced Movant to an aggregate prison term of 120 months. (ECF No. 365). An Amended Judgment was entered on May 5, 2011. (Id.). The Court of Appeals for the Tenth Circuit affirmed the convictions and sentence in United States v. William I. Wilson, 503 F.App'x 598 (10th Cir. 2012) (unpublished). (ECF No. 453). Movant filed a petition for certiorari review in the United States Supreme Court, which was denied on October 7, 2013. (ECF No. 459).
On November 13, 2013, Movant filed a " Motion for Extension of Time to File a Petition for Habeas Relief Under 28 U.S.C. § 2255" (ECF No. 460). In the motion, Movant asked the Court to extend the one-year limitation period for filing a motion for collateral relief under 28 U.S.C. § 2255. (Id.). The Court denied the motion on November 21, 2013 for lack of jurisdiction because the question of whether equitable tolling was warranted for a future § 2255 motion was not ripe. (ECF No. 461). The Court further determined that it lacked authority to extend the statutory filing deadline. (Id.).
On November 18, 2104, Movant filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, in which he purports to assert ten claims for relief. On December 16, 2014, the Court entered an Order directing Movant to show cause why the § 2255 Motion should not be dismissed as time-barred. (ECF No. 468). Movant filed a Response to the Order to Show Cause on December 22, 2014. (ECF No. 470).
Pursuant to 28 U.S.C. § 2255(f), a one-year limitation period applies to motions to vacate, set aside, or correct a federal sentence.
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(f).
In this case, the one-year limitation period ran from the date on which Movant's conviction became final. See § 2255(f)(1). Movant's judgment of conviction became final on October 7, 2013, when the United States Supreme Court denied his petition for certiorari review. See United States v. Burch, 202 F.3d 1274, 1276-78 (10th Cir. 2000). The one-year period expired on October 7, 2014. See United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003) (adopting the anniversary method for calculating the one-year limitation period in § 2255(f)). Movant did not file a § 2255 motion until November 18, 2014, after the limitation period lapsed.
The one-year limitation period in § 2255 is not jurisdictional and is subject to equitable tolling if the petitioner can show " '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.'" United States v. Grealish, No. 13-4182, 559 F.App'x 786 (10th Cir. May 27, 2014) (unpublished) (quoting Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (applying equitable tolling to the one-year limitation period set forth in 28 U.S.C. § 2244(d) for state prisoner petitions)). Movant bears the burden of demonstrating that equitable tolling is appropriate in this action. See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Yang v. Archuleta, 525 F.3d 925 (10th Cir. 2008); see also U.S. v. Garcia-Rodriguez, 275 F.App'x 782, 2008 WL 1868019 (10th Cir. 2008) (unpublished opinion) (relying on Yang for conclusion that the movant in a § 2255 motion bears the burden to show specific facts in support of a claim of extraordinary circumstances and due diligence).
In his response to the Order to Show Cause, Movant argues that the one-year limitation period should be tolled during the time of his detention at the Denver County Jail because he was unable to prepare a § 2255 motion without his legal materials. (ECF No. 470). Movant makes the following declarations in support of equitable tolling, pursuant to 28 U.S.C. § 1746. Between November 2, 2012 and May 2014, he was incarcerated at the Denver County Jail with no access to his legal materials pertaining to this criminal action. (ECF No. 470, at 1-2). During that time, the Movant's legal materials were stored at the federal prison in Englewood, Colorado, where he was incarcerated before being transferred to the Denver County Jail. (Id.). The Denver Sheriff's Department refused to allow Movant to possess any of his legal materials when he was transported to the jail. (Id. at 2).
Denial of access to legal materials can provide a basis for equitable tolling in some circumstances. United States v. Gabaldon, 522 F.3d 1121, 1125-26 (10th Cir. 2008); Espinoza-Matthews v. California, 432 F.3d 1021, 1027-28 (9th Cir. 2005); Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000). However, the petitioner must demonstrate that he acted with due diligence. See Valverde, 224 F.3d at 134 (even where circumstances are sufficiently extraordinary to justify equitable tolling, a petitioner's failure to use reasonable diligence to pursue his claim destroys the causal link between the extraordinary circumstances and the tardiness of the petition). Due diligence may be shown where the petitioner made " multiple requests that his documents be returned before the [filing] deadline." Gabaldon, 522 F.3d at 1126-27; see also Espinoza-Matthews, 432 F.3d at 1027-28 (prisoner who was denied access to his legal materials for approximately 11 months, and who made repeated requests for the return of his legal property during that time, was entitled to equitable tolling of the one-year period in 28 U.S.C. § 2244(d) for state habeas petitions). A petitioner could also show due diligence by attempting to timely file in spite of the lack of access. See Valverde, 224 F.3d at 134.
Movant does not state that, following his transfer to the Denver County Jail, he made any further requests to access his legal materials before the one-year period expired, nor does he maintain that he made efforts to file a timely § 2255 motion. The Court thus finds and concludes that Movant's lack of access to his legal materials during the one-year limitation period does not provide a basis for equitable tolling of the statute. See United States v. Oakes, No. 11-6178, 445 F.App'x 88, 94 (10th Cir. Oct. 21, 2011) (unpublished) (" Absent a showing of due diligence, [the petitioner's] lack of access to his legal materials does not equitably toll the one-year limitation.").
Movant also claims in the § 2255 motion that he is actually innocent of the crimes for which he was convicted on counts 18, 22 and 26 of the superseding indictment. (ECF No. 464, at 2). Specifically, he contends that records he attempted to obtain from Washington Mutual Bank would have shown that he had never been issued a credit card by the bank. (Id. at 20). Movant argues that the " indictment and conviction here were based on the false assumption that Movant fraudulently applied for, obtained, and used a credit card issued by [Washington Mutual], using a stolen SS #." (Id. at 21). He maintains that " th[e] evidence would have destroyed the government's allegations in counts # 18, 21, and 26, and it would have been critical to prove Movant's innocen[ce]." (Id.).
A credible claim of actual innocence may overcome a statutory limitation period for collateral attacks on a criminal conviction. See McQuiggin v. Perkins, 569 U.S., 133 S.Ct. 1924, 1931-32, 185 L.Ed.2d 1019 (2013). However, " tenable actual innocence gateway pleas are rare, " and a petitioner " 'must show that it is more likely than not that no reasonable juror would have convicted the petitioner in light of the new evidence.'" Id. at 1928, 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). A claim of actual innocence requires a petitioner " to support his allegations of constitutional error with new reliable evidence -whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup, 513 at 324 (emphasis supplied); see also House v. Bell, 547 U.S. 518, 537-38, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). " New" evidence is " relevant evidence that was either excluded or unavailable at trial." Schlup, 513 U.S. at 327-28.
A claim of actual innocence does not justify an untimely § 2255 motion where the evidence relied on by the habeas petitioner was known to him before trial. See Johnson v. Medina, No. 13-1324, 547 F.App'x 880, 885 (10th Cir. Dec. 4, 2013) (unpublished) (concluding that petitioner's claim of actual innocence was insufficient to excuse his untimely habeas petition where petitioner " was aware of alleged discrepancies in the DNA evidence and the existence of an alternative suspect before he pled guilty"); McGee v. Rudek, No. 11-6241, 458 F.App'x 781, 782 (10th Cir. Feb. 27, 2012) (unpublished) (claim of actual innocence failed where evidence cited by petitioner was discovered prior to trial). Movant relies on " evidence" that was known and available to him before trial. ( See ECF No. 464, at 20-21). As such, his claim of factual innocence is insufficient to overcome the untimely § 2255 motion.
Further, even if the evidence could be construed as " new, " it is not persuasive. On direct appeal, the Tenth Circuit found, in analyzing Movant's claim that the trial court should have granted his request for a mistrial, that " the evidence supporting [Movant's] guilt was overwhelming, " including the evidence that " when he applied for a credit card with Washington Mutual, Wilson represented as his own Social Security number the Social Security number belonging to another person named William Wilson." (ECF No. 453, at 22). Movant has failed to demonstrate that " it is more likely than not that no reasonable juror would have convicted the petitioner in light of the new evidence." Schlup, 513 U.S. at 327. Accordingly, it is
ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 464), is DENIED as time-barred under 28 U.S.C. § 2255(f). It is
FURTHER ORDERED that all other pending motions (ECF Nos. 463, 465, 466, 467, 469 and 472) are DENIED as moot. It is
FURTHER ORDERED that a certificate of appealability is DENIED.