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Lund v. United States

United States District Court, E.D. Wisconsin

May 27, 2016

JASON M. LUND, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         The petitioner, Jason M. Lund, was charged, along with twenty-six co-defendants, with conspiring to distribute heroin. See United States of America v. Johnson, Case No. 08-CR-197, Docket #1, #60 (E.D. Wis. filed July 14, 2008). Mr. Lund pled guilty on June 3, 2009, to a single count violation of 21 U.S.C. § 841(a)(1). Id. at Docket #534. As a part of his plea, Mr. Lund agreed that death and serious bodily injured resulted from the use of the heroin distributed in furtherance of that conspiracy. Id. at Docket #534 (listing, inter alia, the deaths of Andrew Goetzke and David Knuth). Pursuant to the Court’s conclusion that Mr. Lund had coordinated the sales of heroin resulted in the deaths of Mr. Goetzke and Mr. Knuth, Mr. Lund was sentenced in accordance with a twenty-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)-which is also sometimes known as the “death results” penalty enhancement. Id. at Docket #730; see also 21 U.S.C. § 841(b)(1)(A) (if death or serious bodily injury results from use of substance, defendant shall be sentenced to a term of imprisonment of not less than 20 years or more than life). Mr. Lund unsuccessfully appealed that sentence. United States v. Walker, 721 F.3d 828, 840 (7th Cir. 2013), reh’g en banc denied Aug. 23, 2013.

         On February 1, 2016, Mr. Lund filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket #1). He argues that his sentence should be corrected because Burrage v. United States, ___U.S.___, 134 S.Ct. 881 (2014) and Alleyne v. United States, ___U.S.___, 133 S.Ct. 2151 (2013)[1] render him “actually innocent” of the conduct required to support the penalty enhancement under 21 U.S.C. § 841(b)(1)(A). (See Docket #1, #2). And, according to this theory, Mr. Lund argues that his mandatory minimum sentence is no longer supported by the evidence. (Docket #1, #2).

         Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, the Court screened Mr. Lund’s petition on February 12, 2016. (Docket #3). In that screening order, the Court concluded that Mr. Lund’s petition was likely time-barred. (Docket #3). However, because the Court could not determine, based on the record before it, whether the actual innocence gateway and/or the doctrine of equitable tolling might excuse Mr. Lund’s apparent delay in filing, the Court permitted Mr. Lund’s petition to proceed past the initial screening stage. (Docket #3).

         In response, the government filed an answer in which it argues that the Court’s suspicion regarding the untimeliness of Mr. Lund’s petition is indeed correct. (Docket #6). More to the point, the government argues that the facts of this case do not support either a statutory or common law exception to the one-year timeliness rules embodied in Section 2255(f). (Docket #6 at 2-3). Further, the government argues that the “new” evidence upon which Mr. Lund relies is not “new” in any sense of that word-Mr. Knuth’s and Mr. Goetzke’s toxicology reports were a part of discovery in Mr. Lund’s underlying criminal case. (Docket #6 at 4).

         With respect to the timing of his petition, Mr. Lund makes three arguments.[2] (Docket #8). First, with respect to his position under Alleyne, Mr. Lund posits that because his direct appeal with the Seventh Circuit was still pending when Alleyne was decided, his claim herein is timely. (Docket #8 at 2). Second, Mr. Lund argues that the toxicology reports upon which he relies are “newly discovered.” (Docket #1, #2). Third, Mr. Lund argues that his claims should be equitably tolled because: (1) he experienced difficulties communicating with counsel beginning in February of 2014;[3] and (2) he was not aware of the one-year time limit for Section 2255 petitions. (Docket #8).

         Mr. Lund’s petition is now fully briefed and ripe for adjudication. As a threshold matter, the Court must address whether Mr. Lund’s petition is timely. See 28 U.S.C. § 2255(f). The Court must examine both statutory and common law timing rules and exceptions applicable to Section 2255 petitions.

         The statute of limitations governing Section 2255 petitions is embodied in 28 U.S.C. § 2255(f). Mr. Lund arguably presents three statutory bases upon which this Court may find his petition timely: (1) Section 2255(f)(1) (stating that the “1-year period of limitation…shall run from…the date on which the judgment of conviction becomes final”); (2) Section 2255(f)(3) (stating that the “1-year period of limitation…shall run from…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 (3) Section 2255(f)(4) (stating that the “1-year period of limitation…shall run from…the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence”). The Court will address each possibility in turn.

         First, to determine whether Mr. Lund’s petition is timely under Section 2255(f)(1), the Court must ascertain the date upon which Mr. Lund’s conviction became “final.” Here, Mr. Lund directly appealed his sentence to the Seventh Circuit, who upheld his sentence on July 3, 2013. See Walker, 721 F.3d at 840. Because Mr. Lund did not file a petition for a writ of certiorari to the Supreme Court, his judgment of conviction became final on October 1, 2013, and he therefore had until October 1, 2014, to file a timely Section 2255 petition. See 28 U.S.C. § 1254(1); Latham v. United States, 527 F.3d 651, 652 (7th Cir. 2008) (“The Supreme Court held [in Clay v. United States, 537 U.S. 522, (2003)] that a federal conviction becomes ‘final’ with the expiration of time to file a petition for a writ of certiorari (or, if certiorari is sought and denied, on the date of denial.)”); S.Ct. Rule 13.1. Under this rule, and contrary to Mr. Lund’s position, it is of no moment that Alleyne was decided while Mr. Lund’s direct appeal was pending before the Seventh Circuit. (Docket #8). Rather, because Mr. Lund filed his petition on February 1, 2016-more than one year after his conviction became final-his petition fails to satisfy Section 2255(f)(1). (See Docket #1).

         Next, in order for Section 2255(f)(3) to save Mr. Lund’s petition from being time-barred, Mr. Lund must have filed his petition within one year of when “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.” In his petition, Mr. Lund argues that both Burrage, 134 S.Ct. at 881, and Alleyne, 133 S.Ct. at 2151, are the sources of “newly recognized” rights that are relevant to this petition. (See Docket #1, #2, #8, #9). These cases, however, do not assist Mr. Lund under Section 2255(f) because the Supreme Court decided them over a year before Mr. Lund filed the instant Section 2255 petition. See Burrage, 134 S.Ct. at 881 (decided January 27, 2014); Alleyne, 133 S.Ct. at 2151 (decided on June 17, 2013). Thus, Mr. Lund’s petition fails to satisfy the statutory timeliness exception embodied in Section 2255(f)(3).

         Finally, the rule embodied in Section 2255(f)(4) states that a habeas petition is timely if it is presented within one year from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” Mr. Lund’s arguments on this point are not clear. On the one hand, Mr. Lund suggests that the toxicology reports are “newly discovered” in the sense that they have new legal significance following the Supreme Court’s decisions in Burrage and Alleyne. (See Docket #8 at 7) (“[W]ith the dramatic change of law…the new law effectively converted the toxicology documents…into evidence favorable to petitioner.”). On the other hand, Mr. Lund states-without elaboration- that he has only recently had an opportunity to view the toxicology reports of Mr. Knuth and Mr. Goetzke. (See Docket #2 at 1) (“This claim also comes…through newly discovered facts within the Toxicology and Investigative Reports…[which] could not have been discovered earlier by the petitioner.”) In his reply, Mr. Lund states that this may be due to some measure of ineffective assistance of his counsel. (See Docket #8 at 7) (explaining that Mr. Lund “took it upon himself to send for those documents, which were discovered for the first time by petitioner [in] May [of] 2015….[t]his is obviously attributed to ineffective assistance of counsel….”).

         Under either theory, Mr. Lund’s arguments fail. With regard to Mr. Lund’s first argument, the Seventh Circuit has expressly rejected the notion that a substantive “court decision can be a ‘factual predicate’ within the meaning” of a statutory tolling mechanism like Section 2255(f)(4). See e.g., Lo v. Endicott, 506 F.3d 572, 575-76 (7th Cir. 2007) (holding that a clarification in the law is “not a fact within [the petitioner’s] own litigation history that change[s] his legal status” for the purpose of Section 2244(d)(1)(C)), the state conviction equivalent of Section 2255(f)(4)). With regard to Mr. Lund’s second argument, Mr. Lund does not dispute that his lawyers had access to the documents in question, which the government represents were part of discovery in the underlying criminal case. (Docket #6 at 4). Moreover, the presentence investigative report prepared by the probation department with respect to Mr. Lund expressly cites to Mr. Goetzke’s toxicology report. Indeed, the toxicology reports presented by Mr. Lund are dated June of 2008 and July of 2008, respectively-over a year prior to Mr. Lund’s sentencing. (Docket #2, Ex. 1 at 15-17, 19-21; Johnson, Case No. 08-CR-197, Docket #616). Thus, this Court concludes that Mr. Lund filed his petition outside of the one-year window in which he could have discovered Mr. Knuth’s and Mr. Goetzke’s toxicology reports with due diligence. The timeliness rule embodied in Section 2255(f)(4) is not the life raft upon which Mr. Lund’s petition may be salvaged.

         Though all of the statutory rules governing the Section 2255 limitations period indicate that Mr. Lund’s petition is untimely, Mr. Lund argues that two common law exceptions to the Section 2255 time bar may nonetheless render his petition timely: the actual innocence gateway and equitable tolling. (Docket #1, #2). With respect to his actual innocence argument, Mr. Lund contends that the toxicology reports from Mr. Goetzke and Mr. Knuth reveal that the heroin he conspired to distribute was not the “but for” cause of the mens’ deaths, thereby rendering him actually innocent of the conduct supporting his penalty enhancement under 28 U.S.C. § 841(b)(1)(A). (Docket #1, #2). Moreover, he argues that his sentence was imposed in violation of Alleyne, 133 S.Ct. at 2153, because the fact that he “caused” Mr. Knuth’s and Mr. Goetzke’s deaths-and was, therefore, subject to the mandatory minimum penalty enhancement embodied in 28 U.S.C. § 841(b)(1)(A)-was not submitted to a jury and found beyond a reasonable doubt. (Docket #8 at 1-2). Accordingly, Mr. Lund contends that, under the Supreme Court’s intervening case law, he is “actually innocent.”

         Mr. Lund may avoid the statutory time limits embodied in Section 2255(f) by arguing that the common law doctrine of actual innocence applies. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013). To qualify for this narrow equitable gateway, Mr. Lund must “present[] evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup v. Delo, 513 U.S. 298, 316 (1995). Further, he must show “that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup, 513 U.S. at 327). “The new evidence may include ‘exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.’” Coleman v. Lemke, 739 F.3d ...


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