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United States v. Wright

United States District Court, D. Kansas

November 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DANEMEIN J. WRIGHT, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         This matter comes before the court upon defendant Danemein J. Wright's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 108). Mr. Wright argues he is actually innocent of the crimes he pleaded guilty to and is entitled to equitable tolling of the one-year statute of limitations set forth in 28 U.S.C. § 2255. In response, the government filed a motion to dismiss Mr. Wright's § 2255 petition (Doc. 118), arguing that the motion is untimely and no equitable tolling applies. For the reasons set forth below, the court grants the government's motion and dismisses Mr. Wright's § 2255 petition.

         I. Background

         On September 11, 2008, a grand jury charged Mr. Wright with several drug crimes, including: (1) conspiracy to possess with intent to distribute and to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and § 841(a)(1) (Count 1); (2) distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count 2); (3) distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count 3); (4) possessing with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count 4); and (5) possessing a firearm in furtherance of Count 1, in violation of 18 U.S.C. § 924(c) (Count 5). These charges arose from an arrest of Mr. Wright and several others by Kansas City, Kansas police following a drug operation involving a confidential informant.

         On January 4, 2010, Mr. Wright entered into a plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C). Under the plea agreement, Mr. Wright pleaded guilty to Counts 1 and 5 of the indictment. In return, the government agreed not to file additional charges against him, moved to dismiss all other charges, and recommended a 180-month sentence followed by a five-year supervised release period. Mr. Wright also waived his right to appeal his sentence.

         On April 6, 2010, this court sentenced Mr. Wright to 180 months in prison, followed by five years of supervised release. The government moved to dismiss all other counts and this court granted the motion, dismissing Counts 2-4. Mr. Wright filed a Motion for Leave to file late Notice of Appeal on September 27, 2010, which was denied by this court on November 1, 2010.

         Mr. Wright filed this Motion to Vacate under 28 U.S.C. § 2255 (Doc. 108) on August 16, 2017.

         II. Analysis

         a. Equitable Tolling

          Mr. Wright argues he is actually innocent of the charge brought under 18 U.S.C. § 924(c), possessing a firearm during and in relation to a drug trafficking offense. He asks the court to vacate his sentence because counsel was ineffective in allowing him to enter a plea agreement for a crime of which he is actually innocent. Mr. Wright recognizes his petition comes more than six years out of time under 28 U.S.C. § 2255 and claims that he is entitled to equitable tolling of the statute of limitations because he has raised an actual innocence claim. The court disagrees.

         To qualify for equitable tolling, a petitioner “bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Holland v. Florida, 560 U.S. 631, 649 (2010). The one-year statute of limitations under § 2255 is subject to equitable tolling, but only in “rare and exceptional circumstances.” United States v. Lee, 163 Fed.Appx. 741, 743 (10th Cir. 2006) (quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).[1] Actual innocence constitutes a rare and exceptional circumstance for purposes of equitable tolling. Lee, 163 Fed.Appx. at 743. But “equitable tolling ‘is only available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.'” Id. at 743 (emphasis in original) (citing Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)).[2] A petitioner must demonstrate diligence in pursuing a habeas claim.

         In Lee, the Tenth Circuit noted the petitioner's challenge under 28 U.S.C. § 2255 was based on a December 1995 Supreme Court case, but the petition was not filed until nearly eight years later. 163 Fed.Appx. at 743. Lee was not entitled to equitable tolling because roughly eight years had passed and he “provided no explanation for his failure to [file his petition within the statute of limitations].” Id. This same lack of diligence is also present in the instant case. Mr. Wright provided no explanation for the failure to file this claim within the applicable statute of limitations. Neither Mr. Wright's petition nor his reply to the government's motion attempt to explain why Mr. Wright waited more than six years to seek relief. The Tenth Circuit has rejected many alleged justifications for lack of diligence. For example, in Marsh, the Tenth Circuit rejected ignorance of law, delay by the prison inmate law clerk, and closure of the prison law library for holidays as possible valid bases for equitable tolling. 223 F.3d at 1220-1221.

         The diligence required for equitable tolling purposes is not extreme. Instead, a petitioner need only show “reasonable diligence.” Holland, 560 U.S. at 653. Mr. Wright failed to diligently pursue this claim or offer even a cursory explanation for the significant delay in filing his motion. There is not a valid basis to grant equitable tolling on Mr. Wright's motion.

         b. Miscarriage of ...


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