Monday, January 3, 2011

Entry of judgment date determines finality of conviction; language barrier permits equitable tolling

Mendoza-Miguel v. United States, No. 7:08-CR-127-BO-1, 2010 WL 5353970 (E.D.N.C. Dec. 21, 2010):

Circuit Split:

The parties dispute when Petitioner's judgment of conviction became “final” for purposes of determining the running of the statute of limitations.  Petitioner believes his judgment became final on September 25, 2009, when the time to file a notice of Appeal under Fed. R.App. P. 4(b)(4) expired.  The government, on the other hand, contends the Petitioner's statute of limitations for filing a § 2255 claim began to run on the date this Court's Judgment was entered—September 15, 2009.  The government is correct.

The Circuit Courts are split as to when a judgment of conviction becomes final for purposes of § 2255(f)(1), where, as here, the Defendant files no appeal. The Second, Third, Sixth, Tenth and Eleventh Circuits have held that “the judgment becomes final upon the expiration of the period in which the defendant could have appealed to the court of appeals. Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir.2004) (emphasis added).  Accord United States v. Prows, 448 F/3d 1223, 1227-28 (10th Cir.2006); Moshier v. United States, 402 F.3d 116, 118 (2d Cir.2005); Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir.2000); Kapral v. United States, 166 F.3d 565, 577 (3d Cir.1999). This is the standard Petitioner urges the Court to apply. Petitioner's argument, however, is foreclosed by Fourth Circuit precedent.

In this Circuit, where no appeal has been filed, the judgment of conviction becomes final on the date the district court enters judgment, and not “upon the expiration of the period in which the defendant could have appealed to the court of appeals.” See United States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001).

[Editor's note:  Sanders relies on Torres, which was abrogated by Clay, 537 U.S. 522 (2003).  Accordingly, the Sanders opinion should be carefully applied.]

Equitable Tolling:

The Court finds that the equitable tolling doctrine can properly be invoked in this case because 1) Petitioner does not read, write, or speak English, 2) the BOP does not provide any legal materials in Spanish at FCI Sandstone where Petitioner is incarcerated, and 3) despite Petitioner's requests dating to at least June 3, 2010 to the present, Petitioner's lawyer failed to convey copies of Petitioner's file to Petitioner.  The Court notes with particular consternation the alleged dilatory tactics of Petitioner's lawyer.  It is the opinion of the Court that a Petitioner cannot be deemed entirely responsible for the timeliness (or untimeliness) of his filings where the Petitioner's lawyer fails to discharge his duty to timely communicate with his client.

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