United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. Brimmer Chief United States District Judge.
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.
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
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.
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.
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.
§ 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.
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
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
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).
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.
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