Jones v. United States

20 F. App'x 520
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 17, 2001
DocketNo. 99-3540
StatusPublished
Cited by3 cases

This text of 20 F. App'x 520 (Jones v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. United States, 20 F. App'x 520 (7th Cir. 2001).

Opinion

ORDER

Dale Jones moved under 28 U.S.C. § 2255 to set aside his racketeering conviction, but the district court dismissed the motion as untimely. Mr. Jones argues that the district court misapplied the one-year statute of limitations of § 2255 116 by miscalculating the beginning date of the limitations period. Because we conclude that the present record lacks an adequate foundation for finding Mr. Jones’s motion untimely, we vacate and remand.

[521]*521I.

Mr. Jones pleaded guilty to one count of racketeering, 18 U.S.C. § 1962, and on October 24, 1997, received a 168-month prison sentence. He did not file a direct appeal. In his § 2255 motion, postmarked July 1, 1999, and file-stamped by the district court on July 7, Mr. Jones presses several theories of ineffective assistance of counsel and disputes the computation of his sentence. Specifically, Mr. Jones challenges his attorney’s preparedness, his failure to object to matters at sentencing, and his failure to file a direct appeal upon request. Additionally, Mr. Jones asserts that the district court miscalculated his base offense level when computing his guideline imprisonment range.

In the district court Mr. Jones maintained that his § 2255 motion was timely under § 2255 H 6(4), which starts the statute of limitations on “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” Mr. Jones alleged that his trial attorney failed to file a direct appeal despite a request at an unspecified time to do so, and he added that he filed his § 2255 motion “forthwith” upon discovering this fact. He did not discuss the timeliness of his other claims or offer further information to excuse his delay in presenting them.

The district court sua sponte concluded that the motion was facially untimely, having been filed almost two years after the date Mr. Jones was sentenced. Focusing on former counsel’s failure to file a direct appeal, however, the court anticipated that Mr. Jones might be able to “successfully bring himself within the statutory alternative” of § 2255 116(4). Accordingly, the court ordered both Mr. Jones and the lawyer, Nathan Diamond-Falk, to file affidavits detailing the dates and nature of any communications between them concerning Mr. Jones’s purported desire to appeal.

Attorney Diamond-Falk never responded, but Mr. Jones filed a supplemental affidavit and attached a letter from his wife addressed “To Whom It May Concern.” In this follow-up affidavit, Mr. Jones describes his post-sentencing conversations with Diamond-Falk about the possibility of filing an appeal, although it is unclear from the affidavit when-if at all-Mr. Jones specifically instructed counsel to file a notice of appeal. According to Mr. Jones, immediately following sentencing he asked the attorney what could be done about his case and then asked, “Can we appeal this?” Diamond-Falk reportedly replied that he did not know but that Mr. Jones should call him later. Mr. Jones says he telephoned the following day and asked “if we could appeal the decision.” Diamond-Falk suggested that Mr. Jones make an appointment to discuss the matter. Mr. Jones did so, but he later called to reschedule the appointment and, according to his supplemental affidavit, “again asked Mr. Diamond-Falk to file an appeal.” Diamond-Falk replied, “Just enjoy your holiday. I’ll take care of it.”

At this point in his supplemental affidavit, Mr. Jones “incorporates” the letter from his wife, who details her own conversations with attorney Diamond-Falk after Mr. Jones began serving his prison sentence. Stephanie Jones relates having telephoned Diamond-Falk in mid-February 1998 to inquire about appealing and being told by him on February 19 or 20 that there was “nothing he could do” because the case was “closed” and he already had “done everything he could.” Ms. Jones notes also in her letter that in September 1998 she raised the subject of an appeal with attorney Mark Kusolzky, who tried several times to contact Diamond-Falk about Mr. Jones’s case. Finally in [522]*522December 1998 Kusolzky verified through court records that Diamond-Falk had not filed a notice of appeal.

Mr. Jones then concludes his supplemental affidavit by noting that, after he and his wife learned from Kusolzky that an appeal had never been filed, they began arranging to obtain copies of the relevant court documents. For financial reasons, Mr. Jones maintains, they were unable to secure the needed copies until June 28, 1999. As noted earlier, Mr. Jones filed his § 2255 motion shortly thereafter in early July 1999.

Armed with this information from Mr. Jones, the district court concluded that “not later than February 20, 1998 [Mr. Jones’s] wife was aware on his behalf that Diamond-Falk had not taken any action toward an appeal.” The court thus reasoned that the one-year limitations period had long expired before Mr. Jones filed his § 2255 motion in July 1999, and accordingly dismissed the motion as untimely.

Mr. Jones timely moved for reconsideration, requesting that the district court construe his § 2255 motion as seeking coram nobis relief and thus not subject to the one-year statute of limitations. When the district court declined, Mr. Jones filed a “Motion for Relief from Judgment” disputing the district court’s statute-of-limitations analysis. In an attached affidavit, Mr. Jones for the first time avers specifically that on the day of sentencing he explicitly instructed attorney Diamond-Falk to file an appeal. He also asserts that he was not aware that Diamond-Falk was not going to file an appeal until Ku-solzky investigated the situation in late 1998. The district court denied this motion “for failure to advance any reasons justifying relief.”

Mr. Jones filed a notice of appeal that brings before us the dismissal of his § 2255 motion and the denial of his motion to reconsider. We issued a certificate of appealability allowing him to challenge the timeliness issue and the underlying ineffective-assistance claim. Mr. Jones later filed another notice of appeal from the district court’s denial of his Motion for Relief from Judgment, but he abandoned that appeal and so that motion is not before us.

II.

We begin by noting that our analysis of whether Mr. Jones timely filed his § 2255 motion applies only to his theory that attorney Diamond-Falk was ineffective for failing to file a direct appeal. For all other arguments-challenges to the calculation of Mr. Jones’s sentence and additional theories of ineffective assistance based on his attorney’s preparation and performance at sentencing-the underlying facts necessary to seek post-conviction relief were known at the time of sentencing. Thus, the statute of limitations with respect to Mr. Jones’s other contentions began running when his conviction became final, and he offers no rationale that the limitations period was tolled for those arguments. In- ■ deed, in his brief and at oral argument, counsel encouraged us to construe Mr. Jones’s § 2255 motion as presenting only a claim of ineffective assistance of counsel for failure to file a direct appeal. We accept that invitation.

As to the timeliness of Mr.

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Bluebook (online)
20 F. App'x 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-united-states-ca7-2001.