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United States v. Charboneau

United States District Court, D. Colorado

August 21, 2019

UNITED STATES OF AMERICA,
v.
1. STEPHANIE CHARBONEAU, Defendant. v.

          ORDER DENYING § 2255 MOTION

          Philip A. Brimmer Chief United States District Judge.

         Movant Stephanie Charboneau has filed, pro se, a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 motion”) [Docket No. 74]. The United States responded to the § 2255 motion. Docket No. 80. Ms. Charboneau filed a reply. Docket No. 83.

         The Court construes Ms. Charboneau's filings liberally because she is not represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (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 denied.

         I. PROCEDURAL HISTORY

         On September 5, 2013, Ms. Charboneau pled guilty to Counts One and Two of an indictment, charging violations of 18 U.S.C. §§ 371 and 201, conspiracy and bribery. Docket No. 35. The Court sentenced Ms. Charboneau to 60 months imprisonment as to Count One and 87 months imprisonment as to Count 2, to be served concurrently. Docket No. 66. Ms. Charboneau did not file a direct appeal.

         Ms. Charboneau's § 2255 motion asserts four grounds for relief. Docket No. 74 at 8-12. Her first three grounds for relief relate to the calculation of her offense level under the United States Sentencing Guidelines. She claims that (1) the Presentence Investigation Report (“PSI”) erred by not granting her a minor role reduction, which would reduce her offense level; (2) the PSI erred in calculating her total restitution owed, and a proper calculation of the amount owed would result in a two-point reduction in her offense level; and (3) the PSI erred in applying the bribery enhancement pursuant to § 2C1.1, which increased her offense level by two points. Id. at 8-9. Ms. Charboneau's fourth ground for relief is that her sentence created an “unwarranted sentence disparit[y] among defendants with similar records.” Id. at 9-10 (citing 18 U.S.C. § 3553(a)(6)). Although Ms. Charboneau does not explicitly raise a claim for ineffective assistance of counsel, she alleges that she did not appeal the sentence “because [defense counsel] told [her she] could not file any sort of appeal, ” and that criminal proceedings pending against defense counsel “hindered his ability to focus on [her] defense and provide [her] with the attention [she] deserved under [her] constitutional right.” Id. at 12. Ms. Charboneau requests that her prison sentence be reduced to 36 months. Id.

         II. ANALYSIS

         The United States argues that Ms. Charboneau's § 2255 motion is subject to dismissal because all of her claims are untimely. Docket No. 80 at 2-5.

         A § 2255 motion usually must be filed within one year after the judgment is final. 28 U.S.C. § 2255(f)(1). Here, judgment entered on February 11, 2014. Docket No. 66. Ms. Charboneau did not file a direct appeal; therefore, her conviction became final fourteen days later upon “expiration of the time in which to take a direct criminal appeal.” United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006). She filed her § 2255 motion on November 4, 2016, more than a year and a half after the limitations period expired. Docket No. 74.

         Ms. Charboneau offers two arguments as to why her motion is timely. First, she argues that 28 U.S.C. § 2255(f)(4) applies, which provides that the one-year limitations period runs from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” Docket No. 74 at 13. She contends that Amendment 794 to the United States Sentencing Guidelines, which she relies upon as the basis of her first ground for relief, became effective on November 1, 2015, and thus the one-year clock should start on that date. Id. Second, in her reply she argues that the “extraordinary circumstances” of her case should result in the application of equitable tolling. Docket No. 83 at 9.

         Neither argument has merit. As to Ms. Charboneau's first argument, Amendment 794 cannot trigger a later start to the limitations period because it does not fit within the plain text of § 2255(f)(4). Amendment 794 amended the commentary to U.S.S.G. § 3B1.2 based on a finding that “minor role reductions were being ‘applied inconsistently and more sparingly than the Commission intended.” United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir. 2016) (quoting U.S.S.G. App. C. Amend. 794). Amendment 794 is not a new “fact[] supporting the claim”; rather, it is a modification to the Sentencing Guidelines. See 28 U.S.C. § 2255(f)(4). The Tenth Circuit has rejected the argument that Amendment 794 constitutes a “new fact” for purposes of § 2255(f)(4). See United States v. Harrison, 680 Fed.Appx. 678, 680 (10th Cir. 2017) (unpublished) (“A change or clarification of controlling law is not a ‘fact' within the meaning of § 2255(f)(4).”); see also United States v. Wells, 2018 WL 1972708, at *2 (N.D. Okla. April 26, 2018) (collecting cases and noting that petitioner's argument “has been rejected by courts across the country”). Thus, § 2255(f)(4) does not apply to this case and Ms. Charboneau's motion is untimely.[1]

         Moreover, equitable tolling cannot not save Ms. Charboneau's motion. The statutory limitation period in § 2255 is subject to equitable tolling if a movant can show “‘(1) that [s]he has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way.'” United States v. Grealish, 559 Fed.Appx. 786, 788 (10th Cir. 2014) (unpublished) (quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007) (applying equitable tolling to the one-year statute of limitations in 28 U.S.C. § 2244)). The movant must “allege with specificity the steps [s]he took to diligently pursue [her] federal claims.” Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (internal quotation marks omitted). The movant bears the burden of demonstrating that she is entitled to equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also United States v. Garcia-Rodriguez, 275 Fed.Appx. 782, 784 (10th Cir. 2008) (unpublished) (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).

         Ms. Charboneau does not articulate which “extraordinary circumstances” require the application of equitable tolling. In her motion, she indicates that she did not file a timely appeal of her sentence because defense counsel “told [her she] could not file any sort of appeal.” Docket No. 74 at 12. Ms. Charboneau says that defense counsel “stood by that statement” even after Ms. Charboneau “read the transcripts and pointed out the fact that [the Court] had told [her that she] was able to [appeal] within 14 days.” Id.; see also Docket No. 83 at 4-5. In essence, this is a claim that defense counsel's misconduct related to the lack of a direct appeal is an extraordinary circumstance that requires equitable tolling of the statute of limitations for a § 2255 motion.

         The one-year limitation period may be subject to equitable tolling when “serious instances of attorney misconduct” have occurred. Holland v. Florida, 560 U.S. 631, 651-52 (2010) (addressing one-year limitation period for habeas petitions filed by state prisoners); Fleming v. Evans, 481 F.3d 1249, 1256 (10th Cir. 2007) (same). However, “a garden variety claim of excusable neglect” does not suffice. Holland, 560 U.S. at 651-52 (internal quotation marks and citation omitted). “[C]lients, even if incarcerated, must ‘vigilantly oversee,' and ultimately bear responsibility for, their attorneys' actions or failures.” Fleming, 481 F.3d at 1255-56 (internal citation omitted). Therefore, “attorney error, miscalculation, inadequate research or other mistakes have ...


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