We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TIMING IS EVERYTHING
Two decisions last week remind us that timing is key.
Julio Cardenas filed a 28 USC § 2255 motion arguing that his defense attorney had rendered ineffective assistance to him. In fact, he had no idea how ineffective counsel had been (and was continuing to be).
Julio lost his direct appeal, and the Supreme Court then denied certiorari. Julio filed for Supreme Court rehearing, and that was denied, too.
Fast forward a year. Julio’s attorney filed his § 2255 motion, but did so a year after denial of Supreme Court rehearing. But courts have uniformly held that the deadline for filing a § 2255 motion is really a year after the Supreme Court first denies certiorari, not a year after the later date when it denies rehearing whether its earlier denial of cert was correct. As a result, Julio’s § 2255 was filed 47 days past the date it was due under 28 USC § 2255(f)(1).
Julio asked his district court to accept it anyway under a doctrine called equitable tolling. A prisoner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Equitable tolling is warranted only in “rare and exceptional circumstances,” as the courts like to say.
Last week, the 5th Circuit said Julio didn’t have such circumstances here. The 5th said Julio’s counsel simply messed up. His lawyer admitted he now knew that a “petition for rehearing on a denial of certiorari on direct appeal does not toll the AEDPA time limit. All I can say in my defense is the concept is so counterintuitive that it did not even occur to me to check or research the question.”
The Circuit said Julio’s lawyer’s mistake was “precisely the kind of case that does not warrant equitable tolling…”
Timing also played a role in a second 5th Circuit decision last week. Leondus Garrigan filed an 18 USC § 3582(c)(1)(A) compassionate release motion, but he sent his request to the warden two weeks after filing the motion in district court. After his court denied the compassionate release motion, Leo filed a motion for reconsideration, pointing out that his administrative remedies were now exhausted, and the court could rule on the motion.
The district court denied the reconsideration, and last week, the 5th agreed:
The primary basis on which Lionel justified reconsideration,” the Circuit ruled, “was a purported ‘manifest error of law.’ But there was no legal error in the underlying judgment. Because he filed his motion in the district court before the warden received his request, he failed to exhaust his administrative remedies. To be sure, after Garrigan’s first motion was denied without prejudice, he successfully exhausted. But it is irrelevant that he achieved exhaustion in the intervening period between the denial and his motion for reconsideration – he was required to properly exhaust before filing the motion. The district court did not have discretion to excuse his failure to do so.
United States v. Garrett, Case No 20-61083, 2021 U.S. App. LEXIS 27214 (5th Cir., Sept. 9, 2021)
United States v. Cardenas, Case No 18-40790, 2021 U.S. App. LEXIS 26910 (5th Cir., Sept. 7, 2021)
– Thomas L. Root