United States District Court, E.D. Wisconsin
ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE (DKT. NO. 1)
PAMELA PEPPER United States District Judge.
August 1, 2016, petitioner Fred Howard filed a motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C.
§2255. Dkt. No. 1. In the motion, he asserts that the
attorney who represented him in his 2005 drug case was
ineffective because he failed to investigate the
defendant's personal history and psychological issues
(Id. at 4); failed to advise him regarding filing an
appeal of his conviction and sentence (Id. at 7);
and failed to challenge the amount of drugs attributed to the
petitioner (Id. at 8). He also alleges that the
district court failed to consider his psychological issues
when imposing its sentence. Id. at 5. Because the
statute of limitations has expired, the petitioner's
claims are untimely, and the court must deny his motion and
dismiss the petition.
petitioner was convicted of conspiracy to possess with intent
to distribute on June 15, 2006 and sentenced on May 17, 2006.
Id. at 1. See also, United States v.
Fred D. Howard, Case No. 05-cr-98-pp (E.D. Wis.). The
docket in his case indicates that he did not appeal his
sentence. In his third ground for relief, the petitioner
alleges that he did not file a direct appeal because his
counsel told him that he did not have any claims.
Id. at 7. He also argues that counsel did not tell
him that if he didn't file a direct appeal, he would not
be able to challenge his sentence at a later date.
Id. that The petitioner explains that he decided to
file the instant motion because he recently experienced
traumatic events involving his children, which triggered
memories about his claims. Id. at 12.
28 U.S.C. §2255(a), a prisoner in custody pursuant to a
sentence imposed by a federal court may file a motion to
vacate, set aside or correct the sentence. The grounds for
filing such a motion are that the sentence was imposed in
violation of federal law or in excess of the maximum
authorized by law; that the court lacked jurisdiction; or the
sentence is otherwise subject to collateral attack.
Id. “Unless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief, ” the court shall notify the
United States Attorney of the motion. 28 U.S.C.
prisoner has a one-year deadline to file a motion under
§2255. The deadline starts to run from the latest of the
following occurrences: (1) date that the conviction becomes
final; (2) the date that the impediment to filing motion is
removed; (3) the date that a right was initially recognized
by the Supreme Court (if a Supreme Court case is made
retroactively applicable to cases on collateral review); or
(4) that the date that facts supporting the claim could have
been discovered through due diligence. 28 U.S.C.
case, it is not readily apparent to the court that the
substance of this motion “conclusively show[s] that the
prisoner is entitled to no relief.” The timing of the
motion, however, is problematic. Because the petitioner
failed to file a direct appeal, his conviction became final
on or about July 19, 2006- over ten years before the
petitioner filed this motion. Accordingly, the motion is
untimely, unless he can show that one of the other events
identified in §2255(f) occurred within the year before
he filed the petition-in other words, sometime after August
petitioner does not identify any impediment to his filing
this motion, other than the fact that he suffered from
psychological trauma at the time he was sentenced. But
according to the petitioner, he has suffered from this trauma
ever since-if the trauma was an impediment during the year
after his conviction became final, it is not clear why it is
not an impediment now. Thus, the second event listed in the
statute is not present. Nor does he identify any Supreme
Court cases decided within the last year-and made applicable
retroactively-which recognized a right that wasn't
available to the petitioner within the year after his
conviction. This leaves the final event-whether, since August
1, 2015, facts supporting his claim came to light that could
not have been discovered in the exercise of due diligence.
petitioner claims that “recently, ” traumatic
events triggered memories that might help him with his
claims. But the last even described in the statute requires
more than just reliance on one's memory-it requires a
petitioner to exercise “due diligence”-to take
responsibility for looking into his claims. A petitioner
cannot fail to appeal, fail to file a Section 2255 motion
within a year after his conviction becomes final, and then do
nothing until one day a memory surfaces. Relying on one's
memory does not constitute the exercise of due diligence.
This section of the statute is designed to help individuals
in situations where, for example, technology develops such
that it is possible to analyze a piece of evidence that could
not have been analyzed at the time the petitioner's
conviction became final, or situations in which a law
enforcement officer might have failed to turn over evidence
that only recently came to light. If any petitioner could get
relief from the one-year statute of limitations by arguing
that they'd recovered some memories, then the one-year
limitations period would become irrelevant.
short, the petitioner has not provided a sufficient
explanation for why he waited ten years to challenge his
sentence. Thus, the petitioner's motion is barred by the
statute of limitations, and the court must deny the motion
and dismiss it. The court notes one thing, however. The
petitioner states on page 7 of his petition that if his
lawyer had advised him to file a direct appeal of his 2006
sentence, he would not be able to seek resentencing under
new, retroactive Amendment 790 to the Sentencing Guidelines.
The court suspects, given that the petitioner was convicted
of a drug offense, that he is referring to Amendment 782,
which retroactively reduces many base offense levels for drug
quantities by two. If that is the case, there is no
requirement that the defendant have appealed his sentence
before he can ask for an Amendment 782 reduction. Even if a
person did not appeal his conviction or his sentence, he can
file a motion asking the court that sentenced him for an
Amendment 782 reduction, if he believes he is eligible for
to Rule 11(a) of the Rules Governing Section 2254 Cases, the
court must consider whether to issue a certificate of appeal
ability. A court may issue a certificate of appeal ability
only if the applicant makes a substantial showing of the
denial of a constitutional right. See 28 U.S.C.
§2253(c)(2). The standard for making a
“substantial showing” is whether
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04
(2000) (internal quotation marks omitted).
court concludes that its decision to deny the
petitioner's motion as untimely is neither incorrect nor
debatable among jurists of reason.
reasons explained above, the court DENIES the
petitioner's motion to vacate, set aside ...