United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
Wright filed this Motion to Vacate under 28 U.S.C. §
2255 (Doc. 108) on August 16, 2017.
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.
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). 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)). A petitioner must
demonstrate diligence in pursuing a habeas claim.
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.
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.
Miscarriage of ...