Green v. United States, No. AW-09-0230, 2011 WL 553881 (D. Md. Feb. 8, 2011)
(For a different district's take on this situation, handed down the same day, see the blog entry here.)
Petitioner filed a late § 2255 motion. He argues that he is entitled to equitable tolling because his prison enforced two major "lockdowns" during the year, which required that he be confined to his cell 24 hours a day and allowed to take a 10 minute shower every three days. Petitioner claims that during these lockdowns he had: no commissary access to purchase stamps or mailing envelopes; no law library access to obtain § 2255 forms; and no access to a typewriter, which is a necessity because his handwriting is illegible.
Even assuming that Petitioner had no access to commissary items (stamps and envelopes), the law library, and a typewriter during this one-month lockdown period, he still had approximately two months (July 22, 2010, to September 22, 2010) to prepare and file his Motion in a timely manner. Moreover, as correctly noted by Respondent, Petitioner does not explain why or he could not have prepared and mailed a sufficient § 2255 motion in the almost nine months prior to June 21, 2010, the first date of the prison lockdown. He has not shown that the lockdown caused him "actual harm" as it "unconstitutionally prevented him from exercising that fundamental right of access to the courts in order to attack his sentence."
The Court notes, however, that in this case, the lockdown did not occur close in time to the limitation deadline. In such a circumstance, equitable tolling may be warranted. For equitable tolling to apply, it has to be the lockdown which prevented submission of the 2255 motion. That is not the case here.